                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 25, 2015
                                      PUBLISH                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 JOHNNY RAY DAVIS,

              Petitioner-Appellant,
                                                        No. 15-5018
 v.                                        (D.C. No. 4:14-CV-00260-GKF-FHM)
                                                      (N.D. of Okla.)
 TRACY McCOLLUM,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.


TYMKOVICH, Circuit Judge.



      Johnny Ray Davis received a sentence of life in prison after being

convicted of first-degree murder in Oklahoma. After his state-court challenges to

his conviction and sentence failed, he filed a habeas petition under 28 U.S.C.

§ 2254. The district court rejected his claims and denied a certificate of

appealability (COA). Because we agree that reasonable jurists would not debate

Davis’s entitlement to a COA, we DENY Davis’s request for a COA and

DISMISS this appeal.
                                  I. Background

      At age sixteen, Davis was involved in a botched convenience store robbery

ending in the murder of the convenience store clerk. He was tried as an adult

pursuant to Oklahoma law and convicted of first-degree murder. 1 On October 19,

1992, in accordance with the jury’s recommendation, the trial judge sentenced

him to life imprisonment without the possibility of parole for that crime.

      Davis appealed the sentence through the Oklahoma state system. The

Oklahoma Court of Criminal Appeals (OCCA) ultimately affirmed the sentence

on February 23, 1995. Because he filed no petition for certiorari, his sentence

became final later that year. Over eighteen years later, on June 7, 2013, Davis

filed a pro se application for post-conviction relief in state court, which as

relevant here claimed his age at the time of offense precluded a sentence of life

without parole. Two weeks later, he filed a second application for relief with

assistance of counsel, which reiterated his initial claims. The state trial court

denied the applications and the OCCA affirmed that denial on April 29, 2014.

      On May 16, 2014, Davis filed a pro se federal habeas petition under 28

U.S.C. § 2254. 2 He alleged that: (1) his life without parole sentence violated the

Constitution due to a “new standard [that had] been set in the U.S. Supreme


      1
          A second conviction for using a firearm in the theft is not relevant here.
      2
         We construe that petition and Davis’s pro se filings on appeal liberally.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                          -2-
Court” invalidating sentencing schemes mandating life in prison without

possibility of parole for juvenile offenders; (2) his counsel was ineffective at trial

and on appeal; and (3) as “a juvenile offender, [his] sentence of life without

parole” was unconstitutional. R., Vol. I at 7, 9.

      The district court concluded that the last two issues were time-barred and

that the first issue lacked merit because the case Davis claimed created a new

standard, Miller v. Alabama, 132 S. Ct. 2455 (2012), was inapposite. The court

thus denied habeas relief and denied a COA.

                                    II. Analysis

      A state prisoner needs a COA to appeal a denial of federal habeas relief.

Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). To demonstrate an

entitlement to a COA, the prisoner must show that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Id. at 336 (internal quotation marks

omitted). Because the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) applies here, we keep in mind that when a state court previously

adjudicated the merits of a claim, a federal court may grant habeas relief only if

that state court decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

                                          -3-
determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). In other words, we incorporate “AEDPA’s

deferential treatment of state court decisions . . . into our consideration of a

habeas petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004).

      As mentioned above, the district court rejected Davis’s last two grounds of

error as time-barred. Davis waived any potential challenge to that conclusion by

failing to address it in his opening brief on appeal. Petrella v. Brownback, 787

F.3d 1242, 1266 n.10 (10th Cir. 2015). Even barring waiver, there could be no

debate on the point. Because Davis’s conviction became final before AEDPA’s

enactment, the deadline for him to file his habeas petition was April 24, 1997,

barring any exceptions, see Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.

2001), and we detect none.

      Thus, the only issue stems from Davis’s first asserted ground of error:

whether Miller means the sentence of life without possibility of parole violates

the Constitution because Davis was a juvenile when he committed his crime.

Miller held that “mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’” Miller, 132 S. Ct. at 2460. Davis filed for state post-

conviction relief within a year of Miller’s creation of a new constitutional rule on

June 25, 2012 and filed a federal habeas petition before the limitations period that

                                          -4-
was tolled during his state application’s pendency expired. 3 Thus, this issue is not

time-barred if Miller applies retroactively to cases on federal collateral review. 4

28 U.S.C. § 2244(d)(1)(C), (d)(2). Reasonable jurists have disagreed on that

question. See Croft v. Williams, 773 F.3d 170, 171 (7th Cir. 2014) (noting

“robust debate” on the matter); compare In re Morgan, 717 F.3d 1186, 1187 (11th

Cir. 2013) (Pryor, J., respecting the denial of rehearing en banc) (arguing Miller

is not retroactive on federal habeas review), with id. at 1195 (Barkett, J.,

dissenting from the denial of rehearing en banc) (disagreeing), and id. at 1196,

1200–01 & n.3 (Wilson, J., dissenting from the denial of rehearing en banc)

(arguing question is sufficiently difficult and important to be considered by full

court and collecting examples of the closeness of the question). We have not yet




      3
         He filed for state post-conviction relief on June 7, 2013, nineteen days
before the expiration of the year-long limitations period that began for Miller-
based claims on June 26, 2012 (the day after Miller’s publication). The
application tolled that limitations period until April 29, 2014, when the OCCA
denied relief, and he filed his federal habeas petition on May 16, 2014, before the
limitations period expired.
      4
         It is somewhat unclear how Davis’s first ground differs from his third.
They both seem to rely on his juvenile status, so they could both be construed as
relying on Miller, in which case both issues could then potentially escape being
time-barred. It appears the district court found the third ground untimely because
it did not explicitly rely on new Supreme Court precedent, while the first ground
expressly referenced “[a] new standard [that had] been set in the U.S. Supreme
Court.” R., Vol. I at 7. Ultimately, however, even if the third ground escapes the
timeliness issue because we construe it as relying on Miller, it cannot support a
COA for the same reason the first ground cannot. In any event, Davis failed to
challenge the district court’s timeliness conclusion regarding the third ground.

                                         -5-
weighed in on the issue and need not do so today. 5 Even assuming Miller applies

retroactively to cases on federal collateral review, Davis cannot demonstrate an

entitlement to a COA on this point.

      Miller invalidated sentencing schemes stripping “the sentencing authority”

of “discretion to impose a different punishment” than life without possibility of

parole on a juvenile offender. Miller, 132 S. Ct. at 2460; see also id. at 2466–67

(noting the “mandatory penalty schemes at issue here prevent the sentencer from

taking account” of the mitigating qualities of youth). Picking up on that

language, other circuit courts have approved life sentences imposed on juveniles

pursuant to a scheme allowing such discretion. Croft, 773 F.3d at 171; Evans-

Garcia v. United States, 744 F.3d 235, 240–41 (1st Cir. 2014); Bell v. Uribe, 748

F.3d 857, 869 & n.6 (9th Cir. 2014). At the time of Davis’s conviction,

Oklahoma allowed the sentencing authority discretion to impose life with the

possibility of parole when sentencing a person convicted of first-degree murder.

Okla. Stat. tit. 21, § 701.9(A) (1991) (providing that a defendant convicted of

first-degree murder “shall be punished by death, by imprisonment for life without

parole or by imprisonment for life”). Accordingly, the OCCA found Miller

inapposite because Davis’s jury had the “option of imposing a sentence of life

with a possibility for parole.” R., Vol. I at 92–93.


      5
      The Supreme Court has granted certiorari to answer the question. See
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015).

                                         -6-
      We agree with the other circuits that have addressed this question. And,

because that means we would agree with the OCCA’s analysis even as a de novo

matter, AEDPA deference matters little here. Miller said nothing about non-

mandatory life-without-parole sentencing schemes and thus cannot warrant

granting relief from a life-without-parole sentence imposed under such a scheme.

That suffices to resolve this case.

      Davis attempts to avoid this result by asserting Miller’s logic reaches

beyond invalidating mandatory life-without-parole sentencing schemes for

juveniles. According to him, Miller also established more stringent prerequisites

to imposing life without the possibility of parole on juvenile offenders, even in

non-mandatory schemes. He says those requirements were not met here, and

argues this necessitates granting his petition “whether the state court had

discretion . . . or not.” Aplt. Br. at 7–8 (stating sentencing hearing “did not

approach the sort of hearing envisioned by Miller where the factors of youth are

carefully and thoughtfully considered”). 6 This variation of his claim also fails.

At the outset, he does not develop the argument beyond pointing to his counsel’s


      6
        On the other hand, the judge and jury were well aware of his juvenile
status. See R., Vol. I at 97–104 (references to juvenile status at trial). And Davis
admits his attorney referenced his youth “as a plea for mercy” at sentencing.
Aplt. Br. at 4. As discussed below, to suggest Miller requires more is to request
Miller be extended, and “if a habeas court must extend a rationale before it can
apply to the facts at hand, then by definition the rationale was not clearly
established at the time of the state-court decision.” White v. Woodall, 134 S. Ct.
1697, 1706 (2014) (internal quotation marks omitted).

                                          -7-
allegedly ineffective behavior; he does not, for example, suggest the jury or judge

thought they lacked discretion to impose a sentence of life with the possibility of

parole. And, as noted, he waived any challenge to the court’s determination that

his ineffective-assistance claims were untimely. He cannot evade that conclusion

by smuggling ineffective-assistance arguments into his one potentially timely

claim, and his claim lacks substance beyond those arguments.

      More importantly, the only even potentially timely portions of Davis’s

petition are those “assert[ing]” the new right recognized by the Court in Miller.

28 U.S.C. § 2244(d)(1)(C); see also Prendergast v. Clements, 699 F.3d 1182,

1187 (10th Cir. 2012). That right is narrowly drawn: it protects juveniles who

commit crimes from the mandatory imposition of life without possibility of

parole. See Miller, 132 S. Ct. at 2460. Miller did not purport to alter the law

governing statutory schemes giving the sentencing authority a choice between

imposing life with or without possibility of parole on juvenile offenders. In short,

while Miller certainly reiterated the relevance of youth at sentencing as a general

matter, Davis’s argument at best relies on an extension of Miller’s logic. Two

dispositive conclusions follow from that: (1) because this version of Davis’s

argument does not assert the new right actually recognized in Miller, it suffers

from the same timeliness flaw as his petition’s other contentions; and (2) because

the state post-conviction trial court rejected this argument, see R., Vol. I at 74,

AEDPA deference applies, and we cannot say declining to extend Miller was

                                          -8-
contrary to or an unreasonable application of clearly established federal law as

determined by the Supreme Court, see supra n.6. In sum, reasonable jurists

would not debate Davis’s entitlement to a COA.

                                III. Conclusion

      For the foregoing reasons, we DENY a COA and DISMISS this appeal. We

GRANT Davis’s motion to proceed in forma pauperis on appeal.




                                         -9-
