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

                             FOR THE TENTH CIRCUIT                             December 15, 2015
                         _________________________________
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
ANTIONE DIRAY JOHNSON,

       Petitioner - Appellant,

v.                                                             No. 15-6173
                                                         (D.C. 5:14-CV-01263-C)
ROBERT PATTON, Director,                                    (W.D. Oklahoma.)

       Respondent - Appellee.
                      _________________________________

                              ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *
                       _________________________________

Before KELLY, LUCERO and McHUGH, Circuit Judges.
                  _________________________________

       Petitioner-Appellant Antione Diray Johnson, an Oklahoma state prisoner

proceeding pro se, seeks a certificate of appealability (COA) under 28 U.S.C.

§ 2253(c)(1)(A) to appeal the district court’s denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Because he is proceeding pro se, we construe Mr.

Johnson’s filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991),

but “our role is not to act as his advocate,” Gallagher v. Shelton, 587 F.3d 1063, 1067




________________

       * This order is not binding precedent, except under the doctrines of law of the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.
(10th Cir. 2009).1 Before filing his § 2254 petition, Mr. Johnson unsuccessfully appealed

his convictions and sentences for armed robbery to the Oklahoma Court of Criminal

Appeals (OCCA). He also filed two subsequent applications for post conviction relief in

the state courts, both of which were denied by the state trial court and the OCCA.

       In denying Mr. Johnson’s § 2254 petition, the district court adopted in its entirety

and over Mr. Johnson’s objections the magistrate judge’s thorough, well-reasoned

Supplemental Report and Recommendation (the Report). The district court then

construed Mr. Johnson’s notice of appeal as a request for a COA, which it denied.

Exercising our jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), we now also deny

Mr. Johnson’s application for a COA and dismiss his appeal.

                                   I.   BACKGROUND

       After Mr. Johnson waived his right to a jury, the state court held a bench trial and

found Mr. Johnson guilty of five counts of Robbery with a Dangerous Weapon. Noting

that Mr. Johnson had two prior felony convictions, the state trial court sentenced him to

five consecutively running sentences of imprisonment, the longest of which was for

thirty-five years. In his Report, the magistrate judge provides a detailed description of the

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       1
          In his pro se Opening Brief, Mr. Johnson argues that the magistrate judge failed
to construe his § 2254 petition liberally and that it was therefore dismissed contrary to
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). Our review of the Report and
Recommendation, however, convinces us that even though the magistrate judge did not
cite Hall or specifically state that he was construing the § 2254 petition liberally, he
nevertheless afforded Mr. Johnson the liberal construction required of pro se litigants’
filings. For example, the magistrate judge referred to Mr. Johnson’s pro se status in
solicitously interpreting his opaque arguments. See, e.g., Johnson v. Patton, No. CIV-14-
1263-C, 2015 U.S. Dist. LEXIS 112323, at *14–*16 (W.D. Okla. Aug. 11, 2015).

                                                 2
trial proceedings and the evidence supporting Mr. Johnson’s conviction. See Johnson v.

Patton, No. CIV-14-1263-C, 2015 U.S. Dist. LEXIS 112323, at *2–*14 (W.D. Okla.

Aug. 11, 2015). We do not repeat those details here.

                                      A. Direct Appeal

       With new counsel, Mr. Johnson appealed his convictions and sentences to the

OCCA, arguing (1) his confessions to police about the five robberies—which the trial

court had admitted over Mr. Johnson’s motion to suppress—were obtained in violation of

his constitutional rights, (2) the trial evidence was legally insufficient to convict him as to

one of the robberies, (3) the trial court had allowed improper bolstering by admitting

police testimony describing victims’ identifications of him, despite those victims’ own

trial testimony to that effect, (4) he was denied effective assistance of counsel at trial on

multiple grounds, and (5) cumulative error.

       As to his claim that his confessions were obtained in violation of his constitutional

rights, Mr. Johnson argued for the first time on direct appeal that his confessions were the

fruit of an unlawful, warrantless arrest at his home and were induced by improper

promises and thus not voluntary. The OCCA dismissed these and two other constitutional

claims relating to his confessions on their merits, finding on plain error review that Mr.

Johnson had not been arrested but rather had accompanied police to the station

voluntarily, and that the trial court had not abused its discretion in determining that the

confessions were voluntary.

       As to his claim on direct appeal of ineffective assistance, Mr. Johnson argued trial

counsel should have challenged the admission of his confessions on the grounds that his


                                                  3
warrantless arrest was unconstitutional, his statements were not voluntary because they

were coerced by improper promises of leniency, and trial counsel should have objected to

the improper bolstering of witnesses’ identifications. The OCCA addressed these claims

on their merits, analyzing them under the standard mandated in Strickland v. Washington,

466 U.S. 668, 687 (1984). The OCCA held Mr. Johnson could not show prejudice from

trial counsel’s failure to raise the first two issues because the record did not show a

warrantless arrest and because Mr. Johnson’s will was not overborne by any tempered

promises of leniency. As to the bolstering claim, the OCCA found that although the trial

court had erred in allowing the officers’ testimony, “because [the two witnesses] made

unwa[]vering and unchallenged in-court identifications that were based on ample

opportunity to view [Mr.] Johnson, the bolstering was harmless.” Accordingly, the

OCCA affirmed the convictions and sentences.

                      B. First Application for Post Conviction Relief

       Mr. Johnson then filed an application in state court for post conviction relief under

state procedural rules. He raised eleven grounds for post conviction relief. The state trial

court thoroughly analyzed Mr. Johnson’s claims, which primarily alleged appellate

counsel had been ineffective, and found Mr. Johnson had failed to show he had been

prejudiced by appellate counsel’s allegedly deficient performance, as required by

Strickland. The OCCA affirmed in a detailed opinion.

                    C. Second Application for Post Conviction Relief

       Mr. Johnson filed a second application for post conviction relief, claiming

procedural defects had deprived the state trial court of jurisdiction over his criminal trial.


                                                  4
He also alleged ineffective assistance of appellate counsel for failing to raise these issues

on direct appeal. The state trial court found these claims had been procedurally defaulted

because Mr. Johnson had not shown sufficient reason for failing to raise them on direct

appeal or in his first post conviction application. The OCCA affirmed based on both res

judicata and procedural default.

                                     D. Habeas Appeal

       In his § 2254 petition and brief, Mr. Johnson reasserted claims he had previously

raised on direct appeal and in the applications for post conviction relief. Specifically, Mr.

Johnson alleged that (1) the OCCA’s resolution of his Fourteenth Amendment claims was

contrary to clearly established law, (2) his confessions should have been suppressed, (3)

the trial evidence was insufficient to convict him for one of the robberies, (4) the trial

court improperly allowed bolstering testimony by prosecution witnesses, and (5) he was

denied effective assistance of trial and appellate counsel. Mr. Johnson also sought an

evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).

       The magistrate judge carefully reviewed the procedural posture of each of

Mr. Johnson’s claims and concluded the state trial court and OCCA had considered each

claim on the merits or had appropriately determined that the claims were procedurally

defaulted on independent and adequate state law grounds. As a result, the magistrate

judge recommended that Mr. Johnson’s petition for habeas relief be denied on all claims

previously raised on direct appeal and in the first application for post conviction relief

because Mr. Johnson had not shown that the state courts’ denial of these claims on the

merits was contrary to or unreasonably applied controlling Supreme Court precedent. The


                                                  5
magistrate judge also recommended that the federal habeas proceedings not consider

claims raised for the first time in Mr. Johnson’s second application for post conviction

relief, which the state trial court and the OCCA had found were procedurally defaulted,

because Mr. Johnson had not shown sufficient cause for the procedural default or

prejudice arising therefrom, or that a fundamental miscarriage of justice would occur if

these claims were not addressed. Johnson, 2015 U.S. Dist. LEXIS 112323, at *42–*45.

But the magistrate judge did not expressly address Mr. Johnson’s motion for an

evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).

       Mr. Johnson filed an Objection to the magistrate judge’s Report, which simply

reiterated arguments he had previously asserted. The district court adopted the magistrate

judge’s Report in its entirety, denying Mr. Johnson’s § 2254 petition and, subsequently,

his request for a COA.

       In his combined Opening Brief and Application for a Certificate of Appealability,

Mr. Johnson raises many of the same issues he has raised at the various previous stages

of this litigation. Mr. Johnson first argues the magistrate judge misconstrued his

Fourteenth Amendment claim for illegal arrest by treating it as a Fourth Amendment

claim and dismissing it based on Stone v. Powell, 428 U.S. 465, 494 n.37 (1976) (holding

that a state prisoner may not obtain federal habeas review of a Fourth Amendment claim

where a state court has provided “an opportunity for a full and fair litigation of that

claim”). Aplt. Br. 10–11. Even if the bar adopted in Stone applies, he argues the state trial

court did not afford him a full and fair hearing. Id. at 12. Mr. Johnson next renews his

various ineffective assistance of appellate counsel claims, arguing the OCCA applied the


                                                  6
wrong standard in affirming the denial of these claims, id. at 11, 15, ineffective assistance

of counsel claims cannot be procedurally defaulted or “waived” (as phrased by Mr.

Johnson), id. at 5, 8–9, and that most of his claims have never been considered on the

merits, id. at 10–11. Mr. Johnson also continues to argue that the “jurisdictional issues”

he raised in his second application for post conviction relief could not be procedurally

defaulted. Id. at 9, 16. Finally, he again seeks an evidentiary hearing pursuant to 28

U.S.C. § 2254(e)(2).

                                    II.   DISCUSSION

       A state prisoner must obtain a COA as a jurisdictional prerequisite to challenge a

federal district court’s denial of habeas corpus relief. 28 U.S.C. § 2253(c)(1)(A); Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003). And we will issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To meet this burden as to claims decided on their merits in state court, the

petitioner must show 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) (internal quotation marks omitted). For claims

found to be barred by procedural default in state court, “a COA should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. But

we limit our review of an application for a COA to “an overview of the claims in the


                                                  7
habeas petition and a general assessment of their merits” rather than “full consideration

of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.

                      A. Claims in the Habeas Petition and Appeal

       Mr. Johnson need not show his appeal will succeed to be entitled to a COA, but he

must “prove something more than the absence of frivolity or the existence of mere good

faith.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (internal quotation marks

omitted)). We hold that he cannot meet this standard.

       The magistrate judge found that all of Mr. Johnson’s claims except those raised for

the first time in his second application for post conviction relief had been analyzed on

their merits by the OCCA and therefore evaluated them under the deferential framework

required by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Harrington

v. Richter, 562 U.S. 86, 98 (2011) (“By its terms § 2254(d) bars relitigation of any claim

‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1)

and (2).”). Under AEDPA, Mr. Johnson is entitled to federal habeas relief only if he can

show that the state court decisions on the merits of his claims were “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” or were “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)(1)–(2). “Subsection (d)(1) governs claims of legal error

while subsection (d)(2) governs claims of factual error.” House v. Hatch, 527 F.3d 1010,

1015 (10th Cir. 2008). In applying AEDPA, federal courts must “ensure a level of

deference to the determinations of state courts, provided those determinations did not


                                                 8
conflict with federal law or apply federal law in an unreasonable way.” Williams v.

Taylor, 529 U.S. 362, 386 (2000). And state-court findings of fact are presumed correct

and entitled to deference. 28 U.S.C. § 2254(e)(1).

1. Fourteenth Amendment claim for unlawful arrest

       In consideration of Mr. Johnson’s pro se status, the magistrate judge construed his

Fourteenth Amendment claim for unlawful arrest as a Fourth Amendment claim arising

from Mr. Johnson’s allegations that he was unlawfully arrested in his home without a

warrant. Aplt. Br. 10; see Johnson v. Patton, No. CIV-14-1263-C, 2015 U.S. Dist. LEXIS

112323, at *14 (W.D. Okla. Aug. 11, 2015) (“Because Petitioner is proceeding pro se,

the undersigned has assumed that Petitioner is presenting the same Fourth Amendment

claim here that he presented in subproposition A of ground one in his direct appeal.”). As

a result, Mr. Johnson argues his Fourteenth Amendment claim has never been addressed

on the merits. He further contends that when properly considered under the Fourteenth

Amendment, his claim that his confession should have been suppressed due to his

unlawful arrest is not barred by Stone v. Powell, 428 U.S. 465, 492–94 (1976) (holding

that the purpose of the exclusionary rule would not be furthered if a state prisoner could

obtain federal habeas review of a Fourth Amendment claim that had been fully and fairly

litigated in state court).

       But “[t]he period of time between an unlawful arrest and the institution of legal

process forms one constitutional claim, arising under the Fourth Amendment” and cannot

be brought under the Fourteenth Amendment, which only applies to “[t]he period of time

between the institution of [formal legal] process and its favorable termination—through


                                                 9
acquittal, habeas corpus, voluntary dismissal, etc.” Mondragón v. Thompson, 519 F.3d

1078, 1083 (10th Cir. 2008). Mr. Johnson claims he was arrested without probable cause

before he was transported to the station and that his confession was obtained as a result of

this unlawful arrest. The OCCA’s consideration of this claim under the Fourth

Amendment analysis is consistent with this circuit’s precedent because all of the actions

of which he complains occurred before the institution of formal legal process. See id. And

because the OCCA decided this claim on the merits, the magistrate judge properly

applied AEDPA deference, finding Mr. Johnson had not shown the state courts’ merits

decisions were contrary to or an unreasonable application of Supreme Court precedent,

particularly Stone, or were based on an unreasonable determination of the facts in light of

the evidence in the trial record. Johnson, 2015 U.S. Dist. LEXIS 112323, at *22; cf. 28

U.S.C. § 2254(d)(1)–(2).

       The magistrate judge similarly recommended denying habeas review of Mr.

Johnson’s claims that the evidence was insufficient to convict him of one of the five

robberies and that the trial court erred in allowing the State to bolster eye-witness

testimony. Like the Fourth Amendment claim, the OCCA had rejected both of these

claims on the merits. Thus, Mr. Johnson can succeed in obtaining a COA only by

showing that the state courts’ decisions on their merits failed under AEDPA’s highly

deferential standard. For substantially the same reasons stated by the magistrate judge, id.

at *17–*34, we hold the state courts’ merits review of these claims was not “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “based on an unreasonable


                                                 10
determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “If this standard is difficult to meet, that is

because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a

complete bar on federal-court relitigation of claims already rejected in state proceedings.”

Richter, 562 U.S. at 102 (reversing the Ninth Circuit for failing to accord required

deference to the decision of a state court). Mr. Johnson’s repeated conclusory statements

that the state courts’ analysis was clearly contrary to Supreme Court precedent fail to

make this showing.

2. Ineffective assistance of counsel

       Mr. Johnson also seeks a COA on his ineffective assistance of appellate counsel

claims. To prevail on an ineffective assistance of counsel claim, a petitioner must show

that “counsel’s performance was deficient” and “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Although the Strickland

test addresses both deficient performance2 and prejudice, the Tenth Circuit permits

“proceed[ing] directly to the issue of prejudice” where that will dispose of the issue.

Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998).3 “Moreover, when evaluating an

________________
       2
         Appellate counsel’s performance may be found constitutionally deficient if it can
be shown that “counsel’s performance fell below an objective standard of reasonableness
as measured against prevailing professional norms, and . . . that there is a reasonable
probability that the outcome would have been different but for counsel’s inadequate
performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir. 2008).
       3
         See also Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995) (“The
Supreme Court has observed that often it may be easier to dispose of an ineffectiveness
claim for lack of prejudice than to determine whether the alleged errors were legally
deficient.” (internal quotation marks omitted)); Strickland v. Washington, 466 U.S. 668,

                                                 11
ineffective assistance of counsel claim under § 2254(d)(1), our review is ‘doubly

deferential.’ We defer to the state court’s determination that counsel’s performance was

not deficient and, further, defer to the attorney’s decision in how best to represent a

client.” Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009) (internal citation

omitted) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “The question is

not whether a federal court believes the state court’s determination under the Strickland

standard was incorrect but whether that determination was unreasonable—a substantially

higher threshold.” Knowles, 556 U.S. at 123 (internal quotation marks omitted).

       a.     Claims considered by the state courts on the merits

       The magistrate judge concluded the OCCA had reviewed Mr. Johnson’s

ineffective assistance of trial and appellate counsel claims on the merits under the

Strickland test and found neither constitutionally deficient representation nor prejudice

resulting from counsels’ assistance. Johnson, 2015 U.S. Dist. LEXIS 112323, at *34–

*41. Relying on Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), Mr. Johnson argues

the OCCA applied the wrong standard in its merits review of his ineffective assistance of

counsel claims. Aplt. Br. 11, 15. In Cargle, we held the OCCA had impermissibly added

a third element to a Sixth Amendment claim of ineffective assistance of appellate counsel

by requiring proof of an improper motive for counsel’s deficient performance. Id. at

1202–05. But the OCCA did not do that here. Instead, as the magistrate judge noted, the

________________

697 (1984) (“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”).

                                                 12
OCCA properly applied the Strickland two-part test in affirming the state trial court’s

own application of Strickland in finding that counsel’s performance did not prejudice Mr.

Johnson. And Mr. Johnson does not make any showing that the OCCA’s determination

that counsels’ performance was not constitutionally deficient and did not prejudice him

was an unreasonable application of that Strickland standard. See Knowles, 556 U.S. at

123. Accordingly, we deny Mr. Johnson a COA as to these claims.

       b.     Ineffective assistance claim not considered on its merits

       Despite Mr. Johnson’s insistence that virtually none of his ineffective assistance

claims were considered on the merits below, Aplt. Br. 10–11, we have identified only one

that seems to have been overlooked. In considering Mr. Johnson’s first application for

post conviction relief, the state trial court identified Mr. Johnson’s propositions II, V, VII,

VIII, X, and XI as having been raised and reviewed on the merits in his direct appeal. But

our review of the record reveals that Mr. Johnson’s proposition X, a claim for ineffective

assistance of trial counsel for failing to procure a transcript of the preliminary hearing for

use at trial, was not in fact raised on direct appeal. Instead, Mr. Johnson raised this claim

initially in his first application for post conviction relief, arguing that appellate counsel

was ineffective by not raising on direct appeal a claim that trial counsel had been

constitutionally ineffective by not having the transcript of the preliminary hearing

available. This ineffective assistance of appellate counsel, argued Mr. Johnson, was cause

excusing a procedural default that would otherwise occur as a result of failing to raise the

ineffective assistance of trial counsel claim on direct appeal. And because the state trial

court inadvertently grouped this particular claim with those that had been addressed on


                                                  13
their merits in the direct appeal, neither the trial court nor the OCCA addressed this claim

for ineffective assistance of appellate counsel on its merits in reviewing the first

application for post conviction relief.

       “When state courts have not adjudicated a petitioner’s claim on the merits, the

AEDPA standards do not apply; instead, we review questions of law de novo and

questions of fact for clear error.” Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).

Because Mr. Johnson alleges that appellate counsel mishandled an issue on direct appeal

by failing to raise trial counsel’s ineffectiveness in failing to obtain a transcript of the

preliminary hearing for use at trial, we must perform the following analysis in applying

Strickland:

       When a habeas petitioner alleges that his appellate counsel rendered
       ineffective assistance by failing to raise an issue on direct appeal, we first
       examine the merits of the omitted issue. If the omitted issue is meritless,
       then counsel’s failure to raise it does not amount to constitutionally
       ineffective assistance. If the issue has merit, we then must determine
       whether counsel’s failure to raise the claim on direct appeal was deficient
       and prejudicial.

Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999) (citation omitted).

Nevertheless, although “[a] claim of appellate ineffectiveness can be based on counsel’s

failure to raise a particular issue on appeal,” we note that “it is difficult to show deficient

performance under those circumstances because counsel ‘need not (and should not) raise

every nonfrivolous claim, but rather may select from among them in order to maximize

the likelihood of success on appeal.’” Cargle, 317 F.3d at 1202 (quoting Smith v.

Robbins, 528 U.S. 259, 288 (2000)).




                                                  14
       We think it is likely that “the issue is meritless” and thus “its omission will not

constitute deficient performance,” id., particularly in light of the scant explanation in any

of Mr. Johnson’s filings of how the absence of a transcript prejudiced him. This is true

even construing Mr. Johnson’s pro se filings liberally and assessing “the issue relative to

the rest of the appeal” giving “deferential consideration . . . to any professional judgment

involved in its omission” as required under Strickland and its progeny. Id. Mr. Johnson

fails to offer any explanation of how a preliminary hearing transcript might have rebutted

the compelling evidence of guilt, including Mr. Johnson’s own confessions and the

witnesses’ testimony at trial identifying Mr. Johnson as one of the robbers. See Johnson,

2015 U.S. Dist. LEXIS 112323, at *2–*10 (reviewing the extensive evidence of guilt).

Accordingly, because he cannot show prejudice, Mr. Johnson’s single claim for

ineffective assistance of counsel that was not reviewed on the merits in the state courts

also fails under Strickland.

3. Procedurally defaulted claims

       “We will not consider issues on habeas review that have been defaulted in state

court on an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Smallwood v.

Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999) (internal quotation marks omitted).

Nevertheless, Mr. Johnson argues the “jurisdictional issues”4 he raised for the first time

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       4
        Mr. Johnson claims the state trial court lost jurisdiction (1) by operation of Rules
4(E) and 9(b) in the Civil Procedure Rules for District Courts of Oklahoma, (2) by failing
to conduct a probable cause hearing within forty-eight hours of the alleged arrest, and (3)

                                                 15
in his second application for post conviction relief cannot be procedurally defaulted. Aplt.

Br. 9, 16.5

       In making this argument, Mr. Johnson first equates an alleged failure of the State

to comply with two Oklahoma rules of civil procedure with the expiration of a statute of

limitations.6 Id. Mr. Johnson alleges the State filed an opposition brief out of time (Rule

4(E)) and failed to prosecute diligently (former Rule 9(b)), and that these alleged

violations divested the state trial court of jurisdiction over Mr. Johnson’s criminal trial.

He also claims a probable cause hearing was impermissibly delayed and the state court

committed constitutional violations. But even if all of these allegations were true, it

would not deprive the state court of jurisdiction over Mr. Johnson’s criminal trial.

________________

by virtue of the state trial court’s alleged violations of Mr. Johnson’s constitutional and
fundamental rights.
        5
          Contrary to Mr. Johnson’s arguments, Cargle v. Mullin, 317 F.3d 1196, 1202–05
(10th Cir. 2003), did not hold that ineffective assistance of appellate counsel claims
cannot ever be procedurally defaulted or “waived.” In fact, the Supreme Court has
explicitly held that “an ineffective-assistance-of-[appellate] counsel claim asserted as
cause for the procedural default of another claim can itself be procedurally defaulted.”
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Edwards explained that, based on the
“the interplay between exhaustion and procedural default,” the purposes of the exhaustion
requirement would be frustrated “were we to allow federal review to a prisoner who had
presented his claim to the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it.” Id. This is exactly what Mr.
Johnson did here—he admitted in his second application for post-conviction relief and
several subsequent filings, including in federal court, that he raised issues in his second
post-conviction application that had not been included in his first application for post-
conviction relief in the hope they would be considered exhausted in state court as a
prerequisite for seeking federal habeas relief.
        6
          Even if these procedural rules did carry the force of a statute of limitations, “a
state’s misapplication of its own statute of limitations does not violate federal due process
per se.” Belvin v. Addison, 561 F. App’x 684, 686 (10th Cir. 2014).


                                                 16
Accordingly, the claims do not implicate the trial court’s subject matter jurisdiction and

can be procedurally barred.

       As the magistrate judge noted, AEDPA “strictly limits a federal court’s ability to

consider issues on habeas review that the state court deemed procedurally barred.”

Johnson, 2015 U.S. Dist. LEXIS 112323, at *42 (quoting Hammon v. Ward, 466 F.3d

919, 925 (10th Cir. 2006)). “It is well established that federal courts will not review

questions of federal law presented in a habeas petition when the state court’s decision

rests upon a state-law ground that is independent of the federal question and adequate to

support the judgment.” Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotation marks

omitted). “A state ground will be considered adequate only if it is strictly or regularly

followed and applied evenhandedly to all similar claims.” Smallwood, 191 F.3d at 1268

(internal quotation marks omitted). This ensures “the States’ interest in correcting their

own mistakes is respected in all federal habeas cases.” Coleman v. Thompson, 501 U.S.

722, 732 (1991).

       Because Mr. Johnson first raised these claims in his second application for post

conviction relief, they are not properly exhausted and are procedurally barred. See Cone,

556 U.S. at 465 (“[C]onsistent with the longstanding requirement that habeas petitioners

must exhaust available state remedies before seeking relief in federal court, we have held

that when a petitioner fails to raise his federal claims in compliance with relevant state

procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies as an

independent and adequate state ground for denying federal review.”). We have previously

held that under Oklahoma law “the waiver rule for claims not previously raised” is


                                                 17
“regularly and even-handedly applied by the state courts.” Smallwood, 191 F.3d at 1269

n.8. Therefore we agree with the magistrate judge that the OCCA “relied on an

independent and adequate state ground” in finding the claims Mr. Edwards raised for the

first time in his second post conviction application procedurally defaulted, “including his

claim of a due process deprivation due to the state court’s failure to conduct a probable

cause hearing within [forty-eight] hours of his alleged warrantless arrest.” Johnson, 2015

U.S. Dist. LEXIS 112323, at *42–*43.

       Mr. Johnson has not coherently argued cause for his procedural default or

prejudice arising therefrom (in light of the evidence on which he was convicted at trial),

or shown a fundamental miscarriage of justice arising from any of his procedurally

defaulted claims. Accordingly, for substantially the same reasons stated by the magistrate

judge and adopted by the district court, we deny Mr. Johnson a COA on these claims.

               B. Request for 28 U.S.C. § 2254(e)(2) Evidentiary Hearing

       Finally, Mr. Johnson again seeks an evidentiary hearing pursuant to 28 U.S.C.

§ 2254(e)(2). The magistrate judge did not directly address this aspect of Mr. Johnson’s

§ 2254 petition and brief.

       AEDPA does not allow us to grant Mr. Johnson an evidentiary hearing where he

“has failed to develop the factual basis of a claim in State court proceedings” unless his

claims rely on either “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,” or “a factual

predicate that could not have been previously discovered through the exercise of due

diligence.” 28 U.S.C. § 2254(e)(2)(A)(i)–(ii). Additionally, Mr. Johnson must show that


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“the facts underlying the claim[s] would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.” Id. § 2254(e)(2)(B). As the Supreme Court

has noted, “a failure to develop the factual basis of a claim is not established unless there

is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s

counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000).

       Mr. Johnson’s § 2254 petition and brief and his combined appellate brief and

application for a COA are replete with conclusory allegations that the state trial court

interfered with his opportunity for a full and fair hearing on his case. However, he fails to

identify the facts he believes a § 2254(e)(2) evidentiary hearing would prove or how that

evidence could establish by clear and convincing evidence that, but for a constitutional

error, no reasonable factfinder would have convicted him of the five robberies to which

he confessed. We therefore deny Mr. Johnson’s application for a COA on the issue of his

request for an evidentiary hearing under 28 U.S.C. § 2254(e)(2).

                                   III.   CONCLUSION

       Because Mr. Johnson has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss

this appeal.

                                                   ENTERED FOR THE COURT


                                                   Carolyn B. McHugh
                                                   Circuit Judge




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