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

                             FOR THE TENTH CIRCUIT                              January 2, 2020
                         _________________________________
                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
 VICTOR CORNELL MILLER,

       Petitioner - Appellant,

 v.                                                            No. 19-5041
                                                    (D.C. No. 4:15-CV-00703-JED-JFJ)
 JOE ALLBAUGH,                                                 (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
                  _________________________________

       Petitioner Victor Cornell Miller, an Oklahoma prisoner appearing pro se, seeks a

certificate of appealability (COA) to challenge the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. We deny Miller’s request for a COA and dismiss this matter.

                                             I.

       In 2002 an Oklahoma jury convicted Miller of two counts of first-degree murder.

Adopting the jury’s recommendation, the trial court sentenced him to life without the

possibility of parole for the murder of Mary Agnes Bowles and to death for the murder of

Jerald Thurman.



       
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Miller appealed to the Oklahoma Court of Criminal Appeals (OCCA). The OCCA

reversed his convictions and sentences and remanded for a new trial. Miller v. State

(Miller I), 98 P.3d 738, 743, 748 (Okla. Crim. App. 2004). In 2008 he was retried on

both murder counts. This time, on the jury’s recommendation, he received death

sentences for both murders.

       Miller again appealed to the OCCA. The OCCA affirmed his convictions. But it

found that the death sentence for the Bowles murder had violated Miller’s right to be free

from double jeopardy, so it modified that sentence to life without the possibility of

parole. See Miller v. State (Miller II), 313 P.3d 934, 949-50, 1005 (Okla. Crim. App.

2013). It also reversed the death sentence for the Thurman murder due to

sentencing-related errors and remanded for resentencing on that count. Id. at 1000.

       On remand, Miller waived his right to a jury trial for the resentencing. The trial

court sentenced him to life without the possibility of parole for the Thurman murder and

ordered that the sentence be served consecutively to the life sentence for the Bowles

murder. Miller then filed this habeas petition in federal district court. The district court

denied his petition and denied his request for a COA.

                                             II.

       We first consider our appellate jurisdiction. The district court entered final

judgment dismissing Miller’s habeas petition on March 29, 2019. His notice of appeal

(NOA) was due within 30 days. See Fed. R. App. P. 4(a)(1)(A). The thirtieth day

following March 29 was April 28, 2019. But that day was a Sunday, making the NOA

due on April 29. See Fed. R. App. P. 26(a)(1)(C).

                                              2
       Miller filed his NOA on May 2, three days late. This court issued him an order to

show cause regarding the NOA. In response he filed a memorandum brief, a sworn

declaration, and other papers. The evidence includes an envelope containing a cancelled

postage stamp. The envelope is stamped in two places in red with the words “LEGAL

MAIL.” Next to one of these red stamps appears an initialed date-stamp bearing the date

April 29, 2019. Miller’s declaration, sworn under penalty of perjury pursuant to

28 U.S.C. § 1746, states that on April 29, 2019, he placed his NOA in the prison mailbox

for forwarding to the United States District Court.

       The “prison mailbox rule” permits an inmate to establish timely filing by showing

(1) that he used the prison’s legal mail system, if such a system was available; and

(2) that by the filing deadline, he placed the document to be filed in the prison’s legal

mail system with first-class postage prepaid. See Fed. R. App. P. 4(c)(1)(A)(ii). The

evidence establishes the timely filing under this Rule of the NOA on April 29, 2019. See

id. Among other things, the evidence that the envelope contained a valid postage stamp

established that the postage was “prepaid,” and the initialed date-stamp established that

Miller deposited the envelope on April 29. We therefore have jurisdiction over this

matter.

                                             III.

       Miller requires a COA to appeal the district court’s denial of habeas relief.

See 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, he must make “a substantial showing

of the denial of a constitutional right.” Id. § 2253(c)(2). When a district court rejects a

claim on the merits, the petitioner must demonstrate “that reasonable jurists would find

                                              3
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). But when a district court has dismissed a claim on

procedural grounds, the petitioner must show that reasonable jurists could debate both

(1) the validity of the court’s ruling on the constitutional claim and (2) the correctness of

the court’s procedural ruling. See id. Our “inquiry does not require full consideration of

the factual or legal bases adduced in support of the claims,” but rather “an overview of

the claims” and “a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003).

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), when

a state appellate court has adjudicated a claim on the merits, the petitioner must

demonstrate that its decision was (1) “contrary to, or involved an unreasonable

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

(2) “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). This “highly deferential

standard . . . demands that state-court decisions be given the benefit of the doubt.” Cullen

v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks omitted). We construe

Miller’s petition and pro se appellate filings liberally but do not serve as his advocate.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                             IV.

       In its order denying habeas relief, the district court quoted the OCCA’s lengthy

summary of the evidence presented at Miller’s 2008 trial. See R., Vol. 5 at 116-23

(quoting Miller II, 313 P.3d at 943-49). Because the parties are familiar with the facts,

                                              4
we find it unnecessary to reiterate the OCCA’s summary here. We will describe the facts

as necessary as they pertain to the claims presented.

                                             V.

       A. Heightened Standard of Proof

       Miller argues that because his was originally a capital case, it required the

observance of stricter standards and protections than those required by a non-capital case.

He contends the OCCA and the federal habeas court failed to apply these applicable

heightened standards when assessing his claims. But by the time he filed his habeas

petition the Oklahoma state courts had removed the possibility of a death sentence for

either of his convictions. He fails to explain how reasonable jurists would find it

debatable that the alleged error affects his current judgment and sentences. He has not

shown his entitlement to a COA on this claim.

       B. IAC Claims

       Miller presented multiple claims that he received ineffective assistance of counsel

(IAC) at trial. The OCCA applied the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984), to these claims. Under Strickland, a petitioner must satisfy a

two-part test. First, he must show that his attorney’s “performance was deficient” and

“fell below an objective standard of reasonableness.” Id. at 687-88. Second, he must

demonstrate prejudice, which requires a showing that there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.



                                             5
       Under AEDPA, a state court’s decision on ineffective assistance claims is entitled

to “doubly deferential” review, giving “both the state court and the defense attorney the

benefit of the doubt.” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam)

(internal quotation marks omitted). Following this principle, the district court stated that

“on habeas review, this Court’s task is not to determine whether counsel’s performance

was deficient and prejudicial. Rather, the Court must determine whether it was

objectively reasonable for the state court . . . to reject the defendant’s [IAC] claim.”

R., Vol. 5 at 135. Miller seizes on this language to suggest that the district court ignored

the Strickland standard, failed to conduct a sufficiently comprehensive review of his

ineffectiveness claims, and simply adopted the OCCA’s reasoning concerning these

claims because it was not “objectively unreasonable.” COA Appl. at 7.

       But the district court discussed the OCCA’s disposition of each of Miller’s IAC

claims. See R., Vol. 5 at 136-42. It concluded that upon review of the state-court record,

the OCCA’s decision, and the parties’ briefs, it found nothing objectively unreasonable

about the OCCA’s application of Strickland to these claims and no evidence that the

OCCA’s determination rested on an unreasonable determination of the facts. Thus, it is

not debatable that the district court properly applied the applicable AEDPA review

standards to the OCCA’s Strickland analysis of Miller’s IAC claims.

       Miller also complains of instances where the OCCA found counsel’s performance

deficient, reasoning that the OCCA’s determination means his IAC claims must have

merit. See COA Appl. at 7. But a reviewing court may reject a Strickland claim if a

petitioner “makes an insufficient showing” on either prong. See Strickland, 466 U.S. at

                                              6
697. The district court explained (and Miller does not contest) that the OCCA

determined concerning each IAC claim either that counsel did not perform ineffectively,

or that Miller failed to show prejudice, or both. Thus, the OCCA’s finding of deficient

performance does not make his claims debatable. Miller has failed to show his

entitlement to a COA on this claim.

       C. Prosecutorial Misconduct

       Miller claims pervasive prosecutorial misconduct tainted his trial. To obtain

federal habeas relief on this claim, he must show that the alleged misconduct “so infected

the trial with unfairness as to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

       Miller identifies three specific instances of alleged misconduct. First, he

complains the prosecutor “knowingly sought capital punishment for a case in which he

had previously [been] acquitted by a jury.” COA Appl. at 8. Particularly in view of the

reversal of his capital sentence, he fails to explain how this alleged violation made his

trial or current sentence unlawful.

       Second, he argues the prosecutor knowingly suborned and presented perjured or

false testimony from witnesses Sundeep Patel and Phyllis Miller. See Napue v. Illinois,

360 U.S. 264, 269 (1959) (prohibiting prosecutor from knowingly presenting material,

perjured testimony). Patel, a hotel desk clerk, presented testimony that helped establish

that Miller and his accomplice John Hanson drove Bowles’s stolen car to the Oasis Motel

on August 31, 1999, the date the prosecution established for the theft of the car and the



                                             7
murders of Bowles and Thurman. Police later recovered the broken-down car from the

motel parking lot and found both men’s fingerprints inside it.

       Patel testified that Hanson was accompanied by a second black man on August 31.

Although Patel got a good look at Hanson at the hotel when Hanson checked in, and

confirmed Hanson’s identity using his driver’s license, he did not interact with or focus

on the second man with him. He also testified at trial that he “couldn’t really see” the

second man, noting that a poster board on the left side of the plexiglass service window

where he sat blocked his view. R., Vol. 3 at 880.

       Miller’s counsel vigorously cross-examined Patel, attempting to establish that

Patel saw the second man and provided a description of him that did not fit Miller. He

presented Patel with a statement Patel originally gave to Tulsa police, stating that the

second man probably weighed about 250 pounds. (Miller weighed approximately 180

pounds at the time.) Patel acknowledged that when speaking to a detective soon after the

events in question he was able to provide estimates of the second man’s height, weight,

general build, and age. Counsel also used Patel’s earlier statements to attack his

testimony that his ability to see the second man was blocked by a poster board. The

OCCA reviewed the evidence and concluded that in fact “Patel would have been able to

see anyone in the hotel’s tiny lobby—if he had wanted to and was paying attention.”

Miller II, 313 P.3d 944.




                                             8
       Miller argues that the prosecution knowingly presented false testimony from Patel

that his view was blocked and he was unable to see the second man.1 The OCCA

determined that Miller failed to establish that Patel’s testimony—though perhaps of

limited value—was “‘false’ or that the prosecutor committed misconduct in presenting

[it].” Miller II, 313 P.3d at 978. It further determined that use of Patel’s testimony had

not made Miller’s trial fundamentally unfair.

       As for Phyllis Miller, the OCCA determined that Miller “failed to present any

evidence that the prosecutor’s statements—that the State had not made any ‘deal’ with

Phyllis and that the state had not promised her anything in exchange for her testimony—

were false or misleading.” Id.; see Giglio v. United States, 405 U.S. 150, 153-54 (1972)

(prohibiting prosecutor from suppressing material evidence favorable to the defense).

The district court determined these conclusions did not represent unreasonable factual

determinations or an unreasonable application of clearly established federal law. Miller

fails to show the district court’s determinations concerning Patel’s and Phyllis Miller’s

testimony are debatable.




       1
          Patel also stated he saw the second man seated in the passenger seat of Bowles’
car. Miller now argues this testimony also was false testimony knowingly offered by the
prosecution that differed from Patel’s earlier statements. See COA Appl. at 9-10. He
fails to establish he made this argument to the OCCA. See R., Vol. 1 at 552-53. Nor did
the district court appear to recognize a discrete argument on this point, though Miller
arguably presented it in his habeas reply brief. See id., Vol. 5 at 77-78. To the extent
Miller is attempting to assert a separate, unexhausted claim or sub-claim, he has failed to
show his entitlement to a COA. See Milton v. Miller, 812 F.3d 1252, 1265-66 (10th Cir.
2016).
                                             9
       Finally, Miller complains that the prosecutor made comments to the jury that

diminished the presumption of innocence. To determine whether a prosecutor’s

comments resulted in a fundamentally unfair trial a court should first decide whether the

prosecutor’s comments were improper. See United States v. Christy, 916 F.3d 814, 824

(10th Cir. 2019). If so, it should examine the likely effect of the comments on the jury’s

verdict. See id.

       In concluding that these comments, though improper, did not make Miller’s trial

fundamentally unfair, the OCCA emphasized “that the prosecutor’s remarks were not

objected to by defense counsel, that they were isolated and not emphasized at Miller’s

retrial, and . . . Miller’s jury was clearly and properly instructed regarding the

presumption of innocence.” Miller II, 313 P.3d at 977. The OCCA also noted that “the

evidence of guilt in [Miller’s] case was very convincing.” Id. 2


       2
         In Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990) (per curiam) we
determined the petitioner was not required to meet the Donnelly standard because the
prosecutor’s comments diminishing the presumption of innocence had “effectively
deprived [him] of a specific constitutional right,” thus permitting “a habeas claim [to] be
established without requiring proof that the entire trial was thereby rendered
fundamentally unfair.” Id. at 472; see generally Littlejohn v. Trammell, 704 F.3d 817,
837 (10th Cir. 2013) (explaining prosecutorial misconduct may result in constitutional
error by denying a specific right). Our holding in Mahorney does not require a different
result here. Miller argues for application of the Donnelly standard and does not develop
an argument under Mahorney or related cases. See COA Appl. at 7-8. To prevail on a
claim that the prosecutor violated a specific constitutional right Miller would be required
to show the prosecutor’s comments “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(internal quotation marks omitted); see Matthews v. Workman, 577 F.3d 1175, 1186
(10th Cir. 2009) (stating Brecht standard applies to claims involving alleged violations of
specific constitutional rights). The OCCA concluded to the extent that the prosecutor’s
argument diminishing the presumption of innocence “implicated . . . specific
constitutional rights” Miller was not entitled to relief because the prosecutor’s argument
                                              10
        The district court concluded that the OCCA’s application of the Donnelly

framework was not unreasonable, stating it “agree[d] with the OCCA’s determination

that [Miller] was not deprived of a fair trial.” R., Vol. 5 at 147-48. Because Miller fails

to show that reasonable jurists would debate the district court’s resolution of his

prosecutorial misconduct claim, we deny a COA.

       D. Perjured Testimony

       Miller reiterates his claims that the prosecutor knowingly used perjured testimony

from Sundeep Patel and Phyllis Miller. For the reasons already stated, he is not entitled

to a COA concerning these claims.

       E. Interstate Agreement on Detainers

       Miller asserts the Oklahoma trial court lacked jurisdiction over his case because

the state of Oklahoma violated Article IV of the Interstate Agreement on Detainers

(IAD). The IAD, to which the United States and Oklahoma are signatories, protects a

prisoner from excessive transfers through its anti-shuttling provision. See IAD § 2, art.

IV(e). This provision is violated when a prisoner serving a sentence in a sending state is

indicted by a receiving state; is transferred to the receiving state pursuant to a detainer

and a request for custody; and is then returned to his original place of imprisonment

before being tried on the untried indictment. See id.; see also United States v. Pursley,

474 F.3d 757, 762 (10th Cir. 2007).




was “harmless beyond a reasonable doubt.” Miller II, 313 P.3d at 977. Miller has failed
to demonstrate a debatable issue under the Brecht standard.
                                              11
       At the time of his 2002 state-court murder trial, Miller was serving a federal

sentence of life plus 157 years’ imprisonment at the United States prison in Leavenworth,

Kansas. After his 2002 conviction and sentencing for the murders he was returned to

Leavenworth. The Tulsa County Sheriff’s Office placed a detainer so that when he

finished his federal sentence he would be returned to Oklahoma for execution of the state

sentences. But in 2004 his state conviction was reversed and remanded for a new trial.

Miller argues this converted his detainer into an IAD “detainer” for untried charges.

       In November 2004, the Tulsa County District Attorney’s Office obtained a writ of

habeas corpus ad prosequendum requiring the Federal Bureau of Prisons to return Miller

to Oklahoma for retrial. The BOP then removed the previously placed detainer at the

request of the Tulsa County Sheriff’s Office and Miller was returned to Tulsa County. In

March 2006 he waived his right to speedy trial to accommodate his request for an

eight-month continuance. He was then returned to federal custody during the eight

months to await his state-court jury trial.

       Prior to his 2008 retrial, Miller sought dismissal of the Oklahoma charges against

him from the Oklahoma courts for violation of the anti-shuttling provision. The OCCA

denied a writ of prohibition, concluding (1) the detainer placed on Miller after his 2002

state conviction was not based on untried charges and was therefore not subject to the

IAD; (2) the detainer was removed after his conviction was reversed and remanded for a

new trial; and (3) the writ of habeas corpus ad prosequendum was not a “detainer” for

purposes of the IAD.



                                              12
       The district court agreed with the OCCA’s conclusion that Miller failed to

establish that the IAD was triggered or violated in his case. But it also determined that

habeas relief should be denied because Miller had “fail[ed] to identify any ‘special

circumstances’ that would render the alleged IAD violation subject to collateral attack or

federal habeas relief.” R., Vol. 5 at 157. A violation of the IAD, which creates a

statutory right, only advances a claim for habeas relief where “special circumstances” are

present that also resulted in a violation of a constitutional right. See Knox v. Wyo. Dep’t

of Corrs., 34 F.3d 964, 967 (10th Cir. 1994). Even if Miller’s assertion that the IAD was

violated is debatable, he fails to challenge this alternative basis for the denial of federal

habeas relief. We are unable to discern any constitutional right that the alleged IAD

violation might have denied Miller in this case. He has failed to show his entitlement to a

COA concerning this claim.

       F. Lesser-Included Offense Instruction

       Miller sought a jury instruction on the lesser included offense of accessory after

the fact to first-degree murder. The OCCA found the trial court properly declined to

instruct the jury concerning this lesser-included offense. Although acknowledging that

Miller’s testimony about wiping down Bowles’s car at Hanson’s request could support a

conviction for accessory after the fact to theft of the car, the OCCA reasoned the

evidence did not support a theory that Miller had no involvement in the murders but had

wiped down the car at Hanson’s request, with the intent to help “Hanson ‘avoid or escape

from arrest, trial, conviction, or punishment’” for the murders. Miller II, 313 P.3d at 981

(quoting Okla. Stat. tit. 21, § 173).

                                              13
       The district court reasoned Miller was not entitled to federal habeas relief on this

claim, for several reasons. First, his argument that the OCCA had disregarded state law

in reaching its decision did not state a federal constitutional claim. Second, his claim ran

afoul of the Tenth Circuit’s “rule of automatic non-reviewability for claims based on a

state court’s failure, in a non-capital case, to give a lesser included offense instruction.”

R., Vol. 5 at 133 (internal quotation marks omitted). Third, he had failed to present his

constitutional claim in state court, and the OCCA would likely impose a procedural bar if

he now attempted to do so. Finally, the OCCA’s determination that the evidence did not

warrant the instruction was neither contrary to nor an unreasonable application of clearly

established federal law and was based on a reasonable determination of the facts.

        Miller has failed to show the district court’s resolution of this claim is debatable.

He argues that he was entitled to a lesser-included offense instruction even if he asserted

his innocence. Although the OCCA mentioned that Miller’s defense at trial relied on

total innocence of the murders, it determined there was no evidence to support instructing

the jury that Miller wiped down the car with the intent to protect Hanson from a

first-degree murder charge. See Miller II, 313 P.3d at 981. This determination did not

represent an unreasonable application of clearly established federal law or an

unreasonable determination of the facts.

        In addition, “[t]he Supreme Court has never recognized a federal constitutional

right to a lesser included offense instruction in non-capital cases, and neither has this

court.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (citing Beck v. Alabama,

447 U.S. 625, 638 n.14 (1980)). Indeed, “[o]ur precedents establish a rule of ‘automatic

                                              14
non-reviewability’ for claims based on a state court’s failure, in a non-capital case, to

give a lesser included offense instruction.” Id. (citing Chavez v. Kerby, 848 F.2d 1101,

1103 (10th Cir. 1988)).

       This case originally was tried as a capital case. But as we have noted both of

Miller’s capital sentences were vacated or modified and he is no longer subject to capital

punishment as the result of either of his convictions. Thus he cannot point to a capital

sentence to which he is subject that was imposed on him without permitting the jury to

consider a lesser offense carrying a lesser punishment. Cf. Trujillo v. Sullivan, 815 F.2d

597, 602 (10th Cir. 1987) (“Analytically, the capital case in which the death penalty is

not ultimately imposed appears to be more like the noncapital case than the death

sentence case” for purposes of the rule in Beck. Such a case “belongs with noncapital

cases . . . because . . . the death penalty was not in fact imposed.”). Miller fails to show

the Supreme Court’s holding in Beck debatably applies to his case. We therefore deny

his request for a COA.

       G. Cumulative Error

       Miller argues the district court erred in failing to “aggregate all errors found to be

harmless or otherwise and apply the cumulative error analysis as required by established

law.” COA Appl. at 16. He did not raise a cumulative-error claim in his habeas petition.

The claim is therefore waived for purposes of our review. See Grant v. Royal, 886 F.3d

874, 909 (10th Cir. 2018) (arguments omitted from habeas petition are not preserved for

appellate review); Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000) (applying waiver

analysis to cumulative-error claim not asserted in habeas petition).

                                             15
                                          VI.

      We deny Miller’s request for a COA and dismiss this matter. We grant Miller’s

motion for leave to proceed in forma pauperis on appeal.


                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




                                           16
