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

                                     TENTH CIRCUIT                                May 6, 2014

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 RONALD E. HARDING, JR.,

           Petitioner - Appellant,
                                                              No. 13-5154
 v.                                               (D.C. No. 4:10-CV-00679-GKF-PJC)
                                                              (N.D. Okla.)
 TRACY McCOLLUM, Warden,

           Respondent - Appellee.


                     ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Ronald Harding, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate

of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254

petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to

appeal “the final order in a habeas corpus proceeding in which the detention complained


       *This order is not binding precedent, except under the doctrines of law of the case,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.
       1
        Because Mr. Harding is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point at which
we begin to serve as his advocate.”).
of arises out of process issued by a State court”). We deny his request for a COA and

dismiss this matter.

                                  I. BACKGROUND

                                A. Factual Background

       Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the

Oklahoma state courts’ factual determinations in this case “shall be presumed to be

correct.” 28 U.S.C. § 2254(e)(1). Mr. Harding asserts the state courts clearly erred in

making several factual findings regarding his consent to search. After careful review of

the record, however, we conclude he has not satisfied his “burden of rebutting the

presumption of correctness by clear and convincing evidence.” Id. We therefore recite

the facts as summarized by the OCCA:

       On September 25, 2007, two Tulsa County drug task force officers went to
       Harding’s Tulsa home around 8:30 a.m. to execute an arrest warrant for
       David Gilliam for a drug crime. Deputy Ramsey knocked on the door, and
       Leon Alford, Harding’s cousin and roommate, answered. Ramsey’s
       partner, Officer Rhames, joined him to talk with Alford after making
       certain that no one was trying to escape. Alford told the officers that
       Gilliam had left the night before and was not there. Deputy Ramsey asked
       Alford if they could check inside the home for Gilliam, and Alford
       consented. The officers did not find Gilliam but found a 17-year-old girl
       named Star Cates hiding in one of the bedrooms. A records check revealed
       that she had an outstanding warrant. The officers met Harding coming out
       of the bathroom.

       The officers saw in plain view a large amount of cash on the coffee table,
       prompting them to ask Harding for permission to search his home. Harding
       replied “I have nothing to hide, go ahead and look.” The officers
       handcuffed the three occupants for safety reasons before searching.
       Ramsey testified that he went into the southeast bedroom, opened a coffee
       can, and found money and hundreds of small plastic baggies that he
                                               -2-
       associated with the distribution of drugs. It was then that Harding told
       Ramsey that he did not want him to search anymore and Ramsey stopped
       searching. Ramsey read Harding his rights and Harding told Ramsey that
       he understood them. Ramsey then informed Harding that he was going to
       get a search warrant and asked if he had “any more drugs in the house.”
       Harding volunteered that he had some for personal use and showed Ramsey
       a small tray under a table in a bedroom with rocks of crack cocaine on it.
       Ramsey arrested Harding.

       Officer Rhames testified that he watched Alford, Cates, and Harding in the
       living room while Ramsey was searching. At some point, Harding, who
       was wearing only shorts, asked Rhames to get his work jeans on his hamper
       in the bedroom. Rhames complied with the request. Harding then asked
       for his work shirt on the same hamper. When Rhames picked up the shirt a
       plastic bag containing 24.78 grams of crack cocaine fell onto the floor.
       Rhames returned and asked Harding if that was the shirt he wanted.
       Harding replied, “Yeah I just wanted to get it over with.”

ROA, Vol. I at 74-76.

                               B. Procedural Background

1. State Proceedings

       On October 1, 2007, Mr. Harding was charged with (1) Trafficking in Illegal

Drugs (cocaine base) after two or more previous convictions, in violation of Okla. Stat.

tit. 63, § 2-415 (2001), and (2) Possession of Drug Paraphernalia in violation of Okla.

Stat. tit. 63, § 2-405 (2001). On October 26, 2007, Mr. Harding moved to suppress the

drug evidence as the fruit of an unlawful search and seizure and to dismiss the case,

arguing that he never consented to the search. At a preliminary hearing conducted later

that day, the state court heard officer testimony concerning the search and overruled

defense counsel’s chain-of-custody demurrer without explicitly ruling on his motion to

suppress. Mr. Harding moved to suppress on two additional occasions before trial,
                                               -3-
December 18, 2007, and May 19, 2008. The state trial court deferred its evidentiary

hearing until trial, which began on May 20, 2008.

       At trial, the State introduced (over Mr. Harding’s objection) the drug and money

evidence seized during the search of Mr. Harding’s home. Officers Ramsey and Rhames

testified that Mr. Alford allowed their initial entry, Mr. Harding consented at each stage

of the subsequent search, and their search was otherwise limited to items in plain view.

       Mr. Harding, by contrast, elicited testimony from Mr. Alford and his sister,

Farmina Williams, who was on the phone with Mr. Harding during the beginning of the

search and overheard part of the encounter. Their testimony conflicted with the officers’

accounts—particularly with respect to whether Mr. Harding consented to search. After

their testimony, Mr. Harding renewed his suppression motion along with a motion for

directed verdict. Although defense counsel acknowledged “[t]here is a conflict somewhat

as to the facts of this search,” ROA, Vol. I at 93, he argued the undisputed facts showed

the officers searched Mr. Harding’s home “with no probable cause, no search warrant,

acting with intimidation, and under this evidence without permission, and therefore all of

[the] State’s Exhibits 1, 2, and 3 should be suppressed and this case dismissed,” id. at 94.

       The state trial court denied Mr. Harding’s motion based on its assessment of

witness credibility:

       The testimony of the witnesses, Mr. Alford and Mrs. Williams, is in
       conflict with what the police officers said. And after examining their
       testimony and the circumstances of their testimony, I choose not to accept
       their account of what happened. And have—as I did before, when that was
       the only evidence that we had, was that there was consent to search initially
                                                -4-
       by Mr. Alford and then a consent, a general consent by Mr. Harding.
       Further, that when that was going on, the drugs in question here were ones
       that really weren’t found as a result of a search. They were found as a
       result of at least from the testimony of Mr. Harding asked to be given
       clothing and when he did that, that’s when that particular set of drugs was
       found.

ROA, Vol. I at 94-95.

       On May 20, 2008, the jury convicted Mr. Harding on both charges. He received a

life sentence without parole and a $50,000 fine on the first count, and a $500 fine on the

second count.

       Mr. Harding timely appealed to the Oklahoma Court of Criminal Appeals (the

“OCCA”), arguing that the officers’ initial entry into his home, subsequent search, and

seizures violated the Fourth Amendment.

       On October 20, 2009, the OCCA affirmed Mr. Harding’s conviction. See ROA,

Vol. I at 74. Citing Georgia v. Randolph, 547 U.S. 103, 106 (2006), the OCCA first

concluded the officers’ initial entry was reasonable under the Fourth Amendment because

Mr. Alford, who shared authority over the premises with Mr. Harding, consented to the

initial search. See ROA, Vol. I at 77-78. The OCCA next determined the search of Mr.

Harding’s bedroom—which discovered the coffee can filled with money and plastic

baggies—was reasonable under Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973),

because Mr. Harding consented when he said “I have nothing to hide, go ahead and

look,” ROA, Vol. I at 78.

       When Mr. Harding revoked his consent to search, the OCCA observed, Officer

                                                -5-
Ramsey stopped searching and read Mr. Harding his Miranda rights. After

acknowledging these rights, Mr. Harding showed Officer Ramsey a tray containing crack

cocaine. Accordingly, the OCCA concluded these “drugs were not discovered as a result

of a search but because [Mr.] Harding confessed and led [Officer] Ramsey to the drugs.”

Id. at 79.

       Finally, the OCCA determined the bag of crack cocaine that fell out of Mr.

Harding’s shirt was not seized in violation of the Fourth Amendment because Mr.

Harding “specifically asked Officer Rhames” for that shirt and the bag fell to the floor

when Officer Rhames picked up the shirt. Id. Once the plastic bag containing “a white

crystalline powder consistent with drugs” was in plain view, the OCCA reasoned, Officer

Rhames had probable cause to seize it. Id.; see also Gomez v. State, 168 P.3d 1139, 1143

(Okla. Ct. Crim. App. 2007). Accordingly, the OCCA concluded, none of the evidence

admitted against Mr. Harding was obtained in violation of his Fourth Amendment rights.2

2. Federal Proceedings

       On November 29, 2010, Mr. Harding timely filed a writ of habeas corpus under 28

U.S.C. § 2254, alleging the state courts erred in denying his motions to suppress. The

State responded that Mr. Harding’s petition was barred under Stone v. Powell, 428 U.S.

465 (1976), which prohibits federal courts from considering Fourth Amendment claims in

habeas proceedings if “the State has provided an opportunity for full and fair litigation”


       2
           Mr. Harding did not seek certiorari from the United States Supreme Court.

                                                -6-
of those claims. Id. at 482.

       On December 17, 2013, the federal district court denied relief under Stone. The

district court concluded Mr. Harding had a “full and fair opportunity” to litigate his

Fourth Amendment claims in state court for several reasons. ROA, Vol. I at 108. First,

Mr. Harding filed three pretrial suppression motions and, after a preliminary hearing on

the first motion, the state trial court overruled Mr. Harding’s demurrer. Second, when

Mr. Harding objected to the introduction of evidence during the officers’ testimony and

renewed his motion to suppress, the state trial court overruled his objection “on all

counts.” Id. at 109. Third, at the close of evidence, Mr. Harding renewed his motion to

suppress, and the state trial court again rejected his claim, explaining it credited the

officers’ testimony that Mr. Harding consented to search and the other evidence was

found in plain view. Finally, Mr. Harding raised his Fourth Amendment claims on direct

appeal, and the OCCA affirmed.

       Accordingly, the district court denied Mr. Harding’s petition for habeas relief. It

also refused to grant a COA. See 28 U.S.C. § 2253(c)(1)(A). The district court did,

however, grant Mr. Harding’s motion to proceed in forma pauperis (“ifp”) on appeal.

Mr. Harding now requests a COA and relief on the merits.

                                     II. DISCUSSION

       On appeal, Mr. Harding argues he was denied a full and fair opportunity to litigate

his Fourth Amendment claim. He asserts he never consented to the warrantless search

and the evidence against him should have been suppressed.
                                                 -7-
                         A. Jurisdiction and Standard of Review

       A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition.

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To

receive a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied Mr.

Harding’s habeas petition on procedural grounds “without reaching the prisoner’s

underlying constitutional claim,” a COA cannot issue unless Mr. Harding shows both (1)

“that jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right” and (2) “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000); accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007).

Because we may “resolve the issue whose answer is more apparent from the record and

arguments,” Slack, 529 U.S. at 485, we start and end our discussion with the second

ground concerning the district court’s procedural ruling.

                                     B. Applicable Law

       As noted above, the district court concluded Mr. Harding’s Fourth Amendment

claims were barred from federal habeas review under Stone v. Powell, 428 U.S. 465

(1976). In Stone, the Supreme Court held that “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution

does not require that a state prisoner be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or seizure was introduced at
                                                 -8-
his trial.” Id. at 494. The opportunity for full and fair litigation “includes, but is not

limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment

claim,” a “full and fair evidentiary hearing,” and “recognition and at least colorable

application of the correct Fourth Amendment constitutional standards.” Gamble v.

Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978); accord United States v. Lee Vang Lor,

706 F.3d 1252, 1258 (10th Cir. 2013).

                                         C. Analysis

       Mr. Harding argues the state courts deprived him of a full and fair opportunity to

litigate his Fourth Amendment claim for two reasons. First, Mr. Harding contends he

received only “one opportunity” to litigate his claim “subject to various procedural

deficiencies, including disinterested ineffective counsel, over zealous [sic] officers, and

prosecutorial entities and rubber stamp judges.”3 Aplt. Br. at 28. Second, Mr. Harding

asserts the state courts “did not apply the correct Supreme Court cases and the correct

Constitutional Standards set forth in Brown [v. Illinois, 422 U.S. 590 (1975)] and Wong

Sun [v. United States, 371 U.S. 471 (1963)].” Aplt. Br. at 28; see also Gamble v.

Oklahoma, 583 F.2d 1161, 1165 (1978) (holding petitioner did not receive full and fair

opportunity to litigate his Fourth Amendment claim because in denying relief, the state

court ignored Brown’s holding that giving Miranda warnings does not dispel the taint of

a preexisting Fourth Amendment violation).

       3
         Despite this assertion, Mr. Harding did not press an ineffective assistance claim
in the district court, nor does he raise one now on appeal.

                                                  -9-
       We disagree and deny COA because reasonable jurists would not debate the

district court’s procedural ruling.

       First, Mr. Harding had adequate procedural opportunity to present his Fourth

Amendment claims and received a full and fair evidentiary hearing at the preliminary and

trial suppression hearings. Mr. Harding moved to suppress on three separate occasions,

and the state trial court heard testimony concerning the search during both the

preliminary hearing and the trial suppression hearing. After considering defense

counsel’s arguments and witness testimony, the trial court denied Mr. Harding’s renewed

motion to suppress because it found the officers’ testimony—which established that Mr.

Harding consented to all of the searches—more credible than the testimony offered by

Mr. Harding’s witnesses. Mr. Harding’s counsel “adequately apprised the court of the

factual basis” for Mr. Harding’s Fourth Amendment claim, Smallwood v. Gibson, 191

F.3d 1257, 1265 (10th Cir. 1999), but the court chose to credit a different version of the

facts. What is more, Mr. Harding’s “appellate counsel presented the issue to the OCCA

on direct appeal,” which “thoughtfully considered the facts underlying [Mr. Harding’s]

Fourth Amendment claim and rejected the claim on its merits.” Id.

       Second, the state courts engaged in “at least [a] colorable application of the correct

Fourth Amendment constitutional standards.” Gamble, 583 F.2d at 1165. Because the

state trial court credited the officers’ accounts that Mr. Harding’s roommate consented to

the initial search and Mr. Harding consented to the remaining portions of the search that

led to the discovery of the incriminating evidence, the court appropriately concluded
                                               -10-
there was no Fourth Amendment violation. See Bustamonte, 412 U.S. at 222 (“[A]

search authorized by consent is wholly valid.”). The court therefore had no need to

consider Brown and Wong Sun, which are relevant to dispelling the taint of a Fourth

Amendment violation only if a Fourth Amendment violation occurs in the first place. See

Brown, 422 U.S. at 603 (“Miranda warnings, alone and per se, cannot always make the

act sufficiently a product of free will [to] break, for Fourth Amendment purposes, the

causal connection between the illegality and the confession.” (emphasis added)); Wong

Sun, 371 U.S. at 488 (“[T]he more apt question in such a case is whether, granting

establishment of the primary illegality, the evidence to which instant objection is made

has been come at by exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.” (emphasis added) (quotations

omitted)); see also Gamble, 583 F.2d at 1165 (state court’s failure to consider Brown

deprived petitioner of a full and fair opportunity to litigate his Fourth Amendment claim

where the “search and seizure of petitioner’s statements and the other evidence followed

the admittedly illegal arrest by less than an hour” (emphasis added)).

       The OCCA’s analysis on appeal likewise displayed “recognition and at least

colorable application of the correct Fourth Amendment constitutional standards.”

Gamble, 583 F.2d at 1165. After concluding that the state trial court’s credibility

determinations were supported by substantial evidence and not clearly erroneous, the

OCCA applied prevailing Supreme Court law on consensual searches and the plain view

doctrine to conclude Mr. Harding’s Fourth Amendment rights were not violated. See
                                               -11-
Georgia v. Randolph, 547 U.S. 103, 106 (2006) (authority to consent); Bustamonte, 412

U.S. at 219 (consent); Gomez v. State, 168 P.3d 1139, 1143 (Okla. Ct. Crim. App. 2007)

(citing Harris v. United States, 390 U.S. 234, 236 (1968), to support seizure of “drug-

related items” found “in plain view during a valid warrantless search”). Because the

OCCA agreed with the state trial court that no Fourth Amendment violation occurred, it

also had no reason to consider Brown or Wong Sun.

       Given the multiple motions to suppress, the testimony adduced during the

preliminary hearing and at trial, and the state courts’ recognition and colorable

application of prevailing Fourth Amendment law, we conclude reasonable jurists would

not debate the district court’s conclusion that Mr. Harding had a “full and fair

opportunity” to litigate his Fourth Amendment claim in Oklahoma state court.

                                   III. CONCLUSION

       Mr. Harding has failed to demonstrate that “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling” that his § 2254

motion is precluded by Stone. Slack, 529 U.S. at 484. We therefore deny Mr. Harding’s

application for a COA and dismiss this matter.



                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge

                                               -12-
