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

                            FOR THE TENTH CIRCUIT                          December 17, 2015
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
RONALD J. PATRICK,

      Petitioner - Appellant,

v.                                                           No. 15-5093
                                                (D.C. No. 4:12-CV-00486-CVE-TLW)
ROBERT PATTON, Director,                                     (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Proceeding pro se, Oklahoma state prisoner Ronald J. Patrick seeks a

certificate of appealability (COA) to appeal the district court’s denial of his petition

for habeas corpus.1 We deny his request for a COA and dismiss this matter.

      An Oklahoma jury convicted Patrick of multiple counts arising out of an

incident in which he impersonated a police officer, kidnapped two people under the

guise of a drug sting, and sexually assaulted one of them. The trial court sentenced

him to a term of 55 years’ imprisonment. The Oklahoma Court of Criminal Appeals

      *
         This order is not binding precedent, except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Because Patrick is appearing pro se, we liberally construe his filings.
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But it’s not our role to
act as his advocate. Id.
(OCCA) affirmed Patrick’s convictions and sentence on direct appeal and denied his

subsequent application for postconviction relief.

      Patrick then filed a habeas petition under 28 U.S.C. § 2254 raising four

grounds for relief. The district court denied the petition and declined to issue a COA.

Patrick filed a motion for reconsideration, but the district court ultimately treated the

motion as a second or successive habeas petition filed without prior authorization

from this court and thus dismissed for lack of jurisdiction.

      Patrick now seeks to appeal the district court’s denial of his petition, but he

must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA “only if

[he] has made a substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). To make this showing, Patrick must demonstrate “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.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (citation and internal quotation marks omitted).

      The Antiterrorism and Effective Death Penalty Act (AEDPA) further requires

federal courts grant much deference to state court decisions when, as here, the

petitioner’s federal habeas claims were adjudicated on the merits in state court. See

28 U.S.C. § 2254(d); Dockins v. Hines, 374 F.3d 935, 936-37 (10th Cir. 2004).

Specifically, a federal court may grant habeas relief only when the state court

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court” or was “based on an

                                            2
unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). We incorporate this AEDPA deference into

our consideration of Patrick’s application for a COA. See Dockins, 374 F.3d at 938.

      Patrick first asserts his sentence is excessive because the state court ordered

the sentences for counts one, two, four, and five2 to run consecutively. He argues it is

cruel and unusual to make him serve consecutive sentences because he will be elderly

after serving only a portion of his sentence.3 To establish his sentence violates the

Eighth Amendment, Patrick must show this his case is “an ‘extraordinary’ case in

which the sentences at issue are ‘grossly disproportionate’ to the crimes for which

they were imposed.” United States v. Angelos, 433 F.3d 738, 751 (10th Cir. 2006)

(quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

      Patrick doesn’t argue that any individual sentence is excessive. Instead, he

contends serving his terms consecutively makes his sentence excessive. But “[t]he

Eighth Amendment analysis focuses on the sentence imposed for each specific crime,

not on the cumulative sentence for multiple crimes.” Hawkins v. Hargett, 200 F.3d

1279, 1285 n.5 (10th Cir. 1999). And no reasonable jurist would conclude that any of


      2
         In his petition Patrick argued his sentence is excessive because the state trial
court ordered counts one, two, four, and five to be served consecutively, but Patrick
doesn’t mention count five in his application for a COA. We assume this omission
was inadvertent.
       3
         In his petition Patrick also suggested the state trial court violated his due
process rights when it failed to provide adequate reasoning for ordering his sentences
to run consecutively. Because Patrick doesn’t raise the alleged due process violation
in his application for a COA, we won’t address it here. See Fed. R. App. P.
28(a)(8)(A); Howell v. Trammell, 728 F.3d 1202, 1229 (10th Cir. 2013).

                                            3
Patrick’s sentences were grossly disproportionate to the seriousness of his charged

offenses, which include first degree robbery, kidnapping, and rape by

instrumentation, among others. We thus deny Patrick a COA on this claim.

      Patrick next asserts his trial counsel was ineffective for failing to investigate

and follow up on leads, and his appellate counsel was in turn ineffective for not

raising trial counsel’s ineffectiveness on appeal.4 To establish ineffective assistance

of counsel, Patrick must show “that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”

and “that the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984).

      Because it’s “all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence,” however, “[j]udicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689. And, again, federal

courts review a state court’s adjudication of claims on the merits through AEDPA’s

deferential lens. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Dockins, 374 F.3d

at 936-37. The district court’s review of Patrick’s ineffective assistance of counsel

claims is thus “doubly deferential.” See Yarborough, 540 U.S. at 6.




      4
        Patrick also asserts his appellate counsel was ineffective because “the method
and manner of the appeal” was substandard and because counsel allegedly failed to
investigate and obtain exculpatory evidence at the appeal stage. Aplt. Br. 4. But these
issues were not presented in his petition, and thus we won’t consider them here. See
United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).

                                            4
       We find no basis to conclude that a reasonable jurist could debate the district

court’s denial of Patrick’s ineffective assistance of counsel claims, particularly in

view of its doubly deferential review of the state court’s decision. The district court

found the OCCA provided a well-reasoned opinion establishing that Patrick’s

arguments regarding his trial and appellate counsel’s ineffectiveness were mere

speculation. And even if reasonable jurists could debate whether counsel’s

performance was somehow deficient, Patrick doesn’t argue he was prejudiced by any

deficiencies—that there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. We thus deny a COA on his ineffective assistance of

counsel claims as well.

       Finally, Patrick asserts the prosecution engaged in misconduct by misleading

the defense. But Patrick’s allegation differs from his allegation before the district

court. Specifically, although Patrick labeled “Ground IV” of his petition “Prosecutor

Mislead [sic] the Defense,” R. vol. 1, at 21, the district court interpreted the facts

supporting this ground as directed solely to a newly discovered evidence claim. See

Patrick v. Patton, No. 12-CV-0486-CVE-TLW, 2015 WL 4545933, at *9 n.6 (July

28, 2015); see also Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999)

(explaining that we normally don’t interfere with district court’s interpretation of a

pro se pleading). Now, in his COA application Patrick alleges prosecutorial

misconduct arising from “[t]he failure to secure the video tape of the interrogation,”

Aplt. Br. 4, an argument not related to the newly discovered evidence claim raised

                                            5
below. We decline to consider this new allegation in the first instance here. See

Viera, 674 F.3d at 1220.

      Because we conclude no reasonable jurist would find the denial of Patrick’s

habeas petition debatable, we deny a COA on all claims and dismiss this matter.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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