                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 25, 2014
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 RANDY LOYD GRAY, SR.,

              Appellant - Petitioner,

 v.                                                     No. 13-7070
                                            (D.C. No. 6:10-CV-00358-JHP-KEW)
 JIM FARRIS, Warden, Lexington                           (E.D. Okla.)
 Correctional Center,

              Appellee - Respondent.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      Petitioner and Appellant, Randy Loyd Gray, Sr., seeks a certificate of

appealability (“COA”) in order to appeal the denial of his petition for habeas

corpus relief under 28 U.S.C. § 2254. After concluding that Mr. Gray has not

established entitlement to the issuance of a COA, we deny him a COA and

dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      Following a jury trial, Mr. Gray was found guilty of six counts relating to

sex crimes involving a juvenile: Count 1 – Oral Sodomy, in violation of Okla.

Stat. tit. 21, § 886; Count 2 – Lewd or Indecent Proposals to a Child under 16, in

violation of Okla. Stat. tit. 21, § 1123(A)(1); Count 3 – Lewd Display of

Pornography to a Child under 16, in violation of Okla. Stat. tit. 21, § 1021; Count

4 – 1st Degree Rape by Instrumentation, in violation of Okla. Stat. tit. 21, § 1114;

Count 5 – Lewd Display of Pornography to a Child under 16, in violation of Okla.

Stat. tit. 21, § 1021; and Count 6 – Lewd Molestation, in violation of Okla. Stat.

tit. 21, § 1123. Mr. Gray was sentenced to twenty years on Counts 1 and 6; thirty

years on Count 4; five years on Count 2; ten years on Count 3, and fifteen years

on Count 5. Counts 1, 4 and 6 were ordered to run consecutive to each other, and

Counts 2, 3 and 5 were ordered to run concurrent with Count 4.

      On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”)

summarily affirmed the judgment and sentence. Gray v. State, No. F-2008-168

(Okla. Crim. App. July 1, 2009). Among other issues, Mr. Gray raised to the

OCCA the same issues he raises in the instant habeas proceeding. He did not

pursue any state collateral actions.

      On September 29, 2010, Mr. Gray commenced the instant habeas

proceeding. He argued a single issue (ineffective assistance of counsel) with

three separate subparts. He argued, first, that his trial counsel was ineffective

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because he labored under a conflict of interest while representing him (Mr. Gray);

second, that his counsel failed to contact or interview certain witnesses who had

information which could have been used to impeach prosecution witnesses and

cast doubt on the state’s allegations; and third, that his counsel failed to prepare

for and present impeachment evidence during the cross-examination of the

principal prosecution witness (the victim). The district court addressed the merits

of these issues, applying the deferential review standard of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). The court rejected Mr. Gray’s

arguments and denied him relief. The court then denied Mr. Gray a COA. This

request for a COA followed.



                                   DISCUSSION

      We grant a COA only if an applicant makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant must

show “that reasonable jurists could debate whether . . . the petition should have

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

deserve encouragement to proceed further.” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006).

      Furthermore, as the district court concluded, our review of this case is

governed by AEDPA. Under AEDPA, “when a state court has reviewed a claim

on its merits, federal habeas relief may be granted only if the state court’s

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decision (1) was contrary to or involved an unreasonable application of ‘clearly

established Federal law,’ or (2) was based upon an unreasonable determination of

the facts in light of the evidence presented at trial.” Howell v. Trammell, 728

F.3d 1202, 1212 (10th Cir. 2013) (quoting 28 U.S.C. § 2254(d)). “‘[C]learly

established Federal law’ is limited to Supreme Court ‘holdings, as opposed to the

dicta, . . . as of the time of the relevant state-court decision.’” Id. (quoting Carey

v. Musladin, 549 U.S. 70, 74 (2006)). Furthermore, “a state court’s determination

of a factual issue is ‘presumed to be correct,’ and the petitioner has ‘the burden of

rebutting the presumption of correctness by clear and convincing evidence.’” Id.

at 1212-13 (quoting 28 U.S.C. § 2254(e)(1)).

      In short, “‘[a] state court’s determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could disagree on the

correctness of the state court’s decision.’” Id. at 1213 (quoting Harrington v.

Richter, 131 S. Ct. 770, 786 (2011)). Thus, “[f]ederal habeas is ‘not a substitute

for ordinary error correction through appeal’; it only ‘guards against extreme

malfunctions in the state criminal justice system.’” Id. (quoting Harrington, 131

S. Ct. at 786).

      Finally, we note that, in this particular case, the issue under review is

whether Mr. Gray’s trial counsel provided effective assistance. To make out an

ineffective assistance of counsel claim under the applicable standard provided by

Strickland v. Washington, 466 U.S. 668 (1984), Mr. Gray must show both “(1)

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that his counsel provided deficient assistance and (2) that there was prejudice as a

result.” Howell, 728 F.3d at 1223. “To establish deficient performance, [Mr.

Gray] must show . . . that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”

Harrington, 131 S. Ct. at 787 (internal quotation marks omitted). To establish

prejudice, Mr. Gray “must demonstrate a reasonable probability that, but for

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

different.” Id. 1



       1
        We note that the district court observed that there is an “exception” to
Strickland’s prejudice requirement under Cuyler v. Sullivan, 446 U.S. 335, 350
(1980). “[W]here counsel is burdened by an actual conflict [of interest], ‘[n]o
further showing of prejudice is necessary.’” United States v. Flood, 713 F.3d
1281, 1286 (10th Cir. 2013) (quoting United States v. Bowie, 892 F.2d 1494,
1500 (10th Cir. 1990) (citing Cuyler, 446 U.S. at 349-50))). “However,
‘prejudice is presumed only if the defendant demonstrates that counsel actively
represented conflicting interests and that an actual conflict of interest adversely
affected his lawyer’s performance.’” Flood, 713 F.3d at 1285 (quoting Strickland,
466 U.S. at 692). Furthermore, “the Supreme Court has never applied Cuyler’s
presumption of prejudice outside the context of a multiple representation claim.”
Id. at 1286 n.1 (citing Mickens v. Taylor, 535 U.S. 162, 174-75 (2002)).

      The district court also noted that “the Supreme Court has never considered
a scenario where the concurrent representation ends within approximately a week
and/or is on substantially unrelated matters.” Order at 16; R. Vol. 1 at 56 (citing
Mosier v. Murphy, 790 F.2d 62, 65-66 (10th Cir. 1986)). Since this case does not
involve the typical scenario of multiple concurrent representation, where the
Supreme Court has suggested there may be an exception to the prejudice
requirement of Strickland, the district court found, correctly in our view, that it
“was not ‘an unreasonable application of clearly established Federal law’” for the
[OCCA] to apply Strickland.” Order at 17; R. Vol. 1 at 57 (quoting 28 U.S.C.
§ 2254(d)(1)).

                                         -5-
      “Surmounting Strickland’s high bar is never an easy task.” Id. at 788; see

also Howell, 728 F.3d at 1223. “Even under de novo review, the standard for

judging counsel’s representation is a most deferential one.” Id. “Establishing

that a state court’s application of Strickland was unreasonable under § 2254(d) is

all the more difficult. The standards created by Strickland and § 2254(d) are both

highly deferential, and when the two apply in tandem, review is doubly so.” Id.

(citations and internal quotation marks omitted). Accordingly, because the OCCA

resolved Mr. Gray’s ineffective assistance of counsel claim on its merits, “‘our

review of the [OCCA’s] decision is . . . doubly deferential.’” Heard v. Addison,

728 F.3d 1170, 1178 (10th Cir. 2013) (quoting Cullen v. Pinholster, 131 S. Ct.

1288, 1403 (2011)).

      The district court in this case applied the AEDPA standard to the OCCA’s

determination that Mr. Gray’s counsel did not provide ineffective assistance. We

agree with the district court’s analysis and discussion. We accordingly find that

Mr. Gray has not established entitlement to a COA in order to appeal that

discussion, for substantially the reasons stated by the district court.




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                        CONCLUSION

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

                                    ENTERED FOR THE COURT


                                    Stephen H. Anderson
                                    Circuit Judge




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