                                                          FILED
                                              United States Court of Appeals
               UNITED STATES COURT OF APPEALS         Tenth Circuit

                           TENTH CIRCUIT                        December 24, 2014

                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 BRANDON WAYNE BROWN,

               Petitioner-Appellant,

          v.                                        No. 14-6178
                                             (D.C. No. 5:13-CV-00520-R)
                                                  (W.D. Oklahoma)
 DEPARTMENT OF
 CORRECTIONS OKLAHOMA
 STATE PENITENTIARY, Warden,

               Respondent-Appellee.



   ORDER DENYING A CERTIFICATE OF APPEALABILITY
            AND DISMISSING THE APPEAL


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.


      Mr. Brandon Brown is an Oklahoma inmate who applied for a

writ of habeas corpus. In the application, he asserted claims related

to prosecutorial misconduct, invalidity of a guilty plea, and

disproportionality of the sentences. The federal district court denied

relief.

      Mr. Brown requests a certificate of appealability to appeal the

denial of habeas relief. We conclude that Mr. Brown’s claims are not
reasonably debatable. Accordingly, we decline a certificate of

appealability and dismiss the appeal.

            Standard for a Certificate of Appealability

      To appeal, Mr. Brown needs a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A) (2012). For the certificate, Mr. Brown must

make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (2012). This showing exists only if

reasonable jurists could find the district court’s rulings debatable or

wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

                      Prosecutorial Misconduct

      Mr. Brown claims the prosecutor engaged in prosecutorial

misconduct in the sentencing hearing by urging the court to impose a

harsh sentence based on uncharged acts. In Mr. Brown’s view, the

court should not have considered uncharged acts because there was

not any evidence of them.

      The state appeals court rejected this claim on the merits. Thus,

if we were to entertain the appeal, Mr. Brown would have to justify

habeas relief under the Antiterrorism and Effective Death Penalty

Act of 1996. Under this statute, the federal district court could grant

habeas relief only if Mr. Brown showed an unreasonable

determination of the facts or a decision that contradicted or failed to



                                   2
reasonably apply clearly established federal law. See 28 U.S.C.

§ 2254(d)(1)-(2) (2012).

      The Oklahoma Court of Criminal Appeals rejected the claim

based on a presumption that the trial court confined its analysis to

admissible evidence. R., vol. 1 at 100. No jurist could legitimately

regard this as an unreasonable determination of the facts or clearly

established federal law.

      When the trial judge imposed the sentence, he did not refer to

any of the uncharged acts. Instead, the judge stated that Mr. Brown

had violated court orders and equivocated in his testimony about (1)

whether he had touched his daughter’s vagina with his tongue, and

(2) whether he had perjury charges.    Sent. Tr. at 121-22. Any

habeas court would regard the sentencing judge’s analysis of the

evidence as reasonable.

      The sentencing judge referred in part to Mr. Brown’s violation

of court orders. Id. at 121. This reference was supported by the

record. On direct examination, Mr. Brown admitted that he had

continued to see all of his children “against the Court’s permission.”

Id. at 32-33. And, on cross-examination, Mr. Brown admitted

violating court orders in a juvenile case. Id. at 93.

      The judge also referred to equivocation by Mr. Brown. This

equivocation included whether he had touched the girl’s vagina with

                                   3
his tongue. On direct examination, Mr. Brown admitted that he had

done so. 1 But, on cross-examination, Mr. Brown testified that his

tongue had never touched any part of H.J.’s genital area. Id. at 78-

79. The inconsistency led the sentencing judge to comment that Mr.

Brown had “equivocated about touching [H.J.’s] vagina with [his]

tongue.” Id. at 122.

     Finally, the sentencing judge remarked that Mr. Brown had

equivocated over perjury charges. Id. at 122. Before trial, Mr.

Brown pleaded no contest to two counts involving subornation of

perjury. Plea Hr’g Tr. at 4-6. He later explained that he wanted to

plead guilty, rather than no-contest, but disagreed with the date range

that had been alleged. Sentencing Tr. at 18. Nonetheless, Mr. Brown

resisted when asked whether he had pleaded guilty to subornation of

perjury:

           Q.    And [T.] was yet another witness in this case
           that you have pled guilty to subornation of
           perjury?

           A.    When Judge Ring made that order, he was not a
                 witness in the case, no.




1
      Mr. Brown’s attorney asked on direct examination: “She [H.J.,
the victim] also testified at the preliminary hearing that you [Mr.
Brown] touched her vaginal area with your tongue, again, on the
outside. Did that happen?” Sentencing Tr. at 19. Mr. Brown
answered: “Yes.” Id.
                                   4
            Q.     But my question was: [T.] is yet another witness
                   in this case that you have pled guilty to
                   subornation of perjury?

            A.     I pled no contest, but . . .

            Q.     Another child that you asked to lie to cover
                   up what you did to [H.]?

            A.     We never asked the children to lie.

Sentencing Tr. at 95-96.

      Based on this exchange, the sentencing judge remarked that Mr.

Brown had “equivocated about the perjury charges.” Id. at 122. Any

jurist would have to consider this remark a reasonable interpretation

of the evidence.

      In an appeal, Mr. Brown could argue that the prosecutor

referred to matters without evidence. But, the state appeals court

determined that Mr. Brown had failed to overcome a presumption that

the sentencing judge relied solely on the evidence. This

determination involved a reasonable interpretation of the evidence,

for the judge explained the sentence based on matters supported by

Mr. Brown’s testimony. And, the judge later clarified that he had

relied solely on the testimony. 2 In light of this explanation and



2
      The trial judge also stated during Mr. Brown’s motion to
withdraw the plea “that there was nothing at sentencing that was
adduced by either side, neither in mitigation, nor in exacerbation, . . .
that bore on [the court’s] decision more than what the defendant’s
                                     5
clarification, no jurist could regard the state appeals court’s decision

as an unreasonable determination of the facts or clearly established

federal law.

                  Voluntariness of the Underlying Plea

      The same is true of Mr. Brown’s argument on the invalidity of

his plea. Mr. Brown testified that he understood that the maximum

sentence for child sexual abuse was life imprisonment and

acknowledged ineligibility for parole until he had served 85 percent

of his sentences. And, in his written plea, he acknowledged the

maximum was ten years for subornation of perjury. Plea Hr’g Tr. at

7-12. See 21 Okla. Stat. §§ 500(2), 505 (2001) (subornation of

perjury); 10 Okla. Stat. § 7115(E) (2001) (child sexual abuse). Thus,

he had a full understanding of the consequences of his plea.

      Mr. Brown argues that he did not know the sentencing

proceeding would be unfair. But, as discussed above, the sentencing

judge relied solely on the evidence. In these circumstances, no

reasonable jurist could credit Mr. Brown’s challenge to the validity

of his plea.




own testimony was, and the record in this case.” Motion to
Withdraw Tr. at 57.
                                   6
                     Disproportionate Sentences

      Mr. Brown claims his three concurrent sentences of 30 years

for child sexual abuse are disproportionate to his crimes. Again, no

reasonable jurist could credit this argument.

      In an appeal, the threshold issue would be whether the Supreme

Court has clearly established a constitutional right. See House v.

Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). The Supreme Court

has done so, recognizing a constitutional right to proportionality

between the sentence and the crime. Lockyer v. Andrade, 538 U.S.

63, 72 (2003).

      In light of this recognition of a constitutional right, the issue in

a habeas appeal would be whether the state appeals court reached a

decision that contradicted or unreasonably applied Supreme Court

precedent. 28 U.S.C. § 2254(d)(1) (2012). Under the “contrary to”

clause, the federal district court may grant the writ “if the state court

decides a case differently than [the Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S.

362, 413 (2000). Under the “unreasonable application clause,” the

federal district court may grant the writ only if “the state court’s

application of clearly established federal law was objectively

unreasonable.” Id., 529 U.S. at 409.



                                    7
     The state appeals court’s decision was consistent with Supreme

Court precedents. In Harmelin v. Michigan, the Supreme Court held

that a sentence of life imprisonment without a possibility of parole

was constitutional for someone convicted of a serious drug crime.

501 U.S. 957, 961, 996 (1991). And, in Rummel v. Estelle, the

Supreme Court upheld a sentence of life imprisonment for a repeat

offender convicted of relatively minor felonies. Rummel v. Estelle,

445 U.S. 263, 265-66, 284-85 (1980).

     In light of these decisions, the state appeals court could

reasonably have determined that Mr. Brown’s sentence was

proportionate to the crime. The crime was serious, 3 and the court

could have sentenced Mr. Brown to life imprisonment. 4 In giving

Mr. Brown a lesser sentence of 30 years, the trial court did not

contradict or fail to reasonably apply Supreme Court precedents on

proportionality. See United States v. Dowell, 771 F.3d 162, 169 (4th

Cir. 2014) (holding that an 80-year sentence for production of child

pornography was not disproportionate to the crime because of the

devastating consequences of sexual abuse of children). Thus, no

reasonable jurist could credit Mr. Brown’s challenge to the sentence.


3
     See Cacoperdo v. Demosthenes, 37 F.3d 504, 508 (9th Cir.
1994) (“Sexual molestation of a child is a very serious offense.”).
4
     Okla. Stat. tit. 10, § 7115(E) (2001).
                                   8
                   Breach of the Plea Agreement

      In the course of discussing the appeal point on prosecutorial

misconduct, Mr. Brown alleges breach of the plea agreement. But,

this allegation did not appear in the habeas petition. No reasonable

jurist could credit an appeal point on a claim that had been omitted

from the habeas petition. See United States v. Flood, 713 F.3d 1281,

1291 (10th Cir.) (declining to grant a certificate of appealability on a

claim that had not been adequately presented in district court), cert.

denied, __ U.S. __, 134 S. Ct. 341 (2013).

                          In Forma Pauperis

      Mr. Brown seeks not only a certificate of appealability, but

also leave to proceed in forma pauperis. Because we have dismissed

the appeal, the application for pauper status is dismissed on the

ground of mootness. Johnson v. Keith, 726 F.3d 1134, 1136 (10th

Cir. 2013) (denying leave to proceed in forma pauperis on the ground

of mootness upon denial of a certificate of appealability).


                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge




                                   9
