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

                                     TENTH CIRCUIT                               April 28, 2011
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
CHAD NATHAN HARRIS,

       Petitioner - Appellant,

v.                                                              No. 10-5144
                                                    (D.C. No. 4:07-CV-00412-JHP-FHM)
WALTER DINWIDDIE, Warden,                                       (N.D. Okla.)

       Respondent - Appellee.




                                 ORDER DENYING
                          CERTIFICATE OF APPEALABILITY


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       This case involves the nearly ubiquitous claim of ineffective assistance of counsel

and complaints about evidentiary rulings. Chad Nathan Harris, an Oklahoma state

prisoner proceeding pro se 1 and in forma pauperis (ifp), 2 wants to appeal from the district

court’s denial of his 28 U.S.C. § 2254 habeas petition. The district court concluded he

had not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). As that decision is not reasonably debatable, we deny his request for a


       1
        We construe pro se pleadings liberally. See Ledbetter v. City of Topeka Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
       2
           The district court allowed him to proceed ifp on appeal.
certificate of appealability (COA) and dismiss this matter.

                               I.       BACKGROUND

       On June 24, 2005, Harris fatally shot Otto Reichel eight times. Present at the time

of the shooting were Harris’ girlfriend, Sarah Peters, and Reichel’s roommate, Brett

Myers. Both testified against Harris at trial. 3 The jury found Harris guilty and he was

sentenced to life imprisonment.

       Harris filed a direct appeal. Relevant here, he argued he was prejudiced by the

admission at trial of testimony about other crimes he committed, namely: (1) he had

stolen the murder weapon and (2) he and Peters stole the van they used to flee to Texas

two days after the murder. He also claimed the evidence was insufficient to support his

conviction because it was based on the uncorroborated testimony of Myers and Peters,

who he alleged were both accomplices to the murder. Finally, Harris contended trial

counsel was constitutionally ineffective for failing to impeach Peters with letters she sent

Harris while they were in jail. In the letters, she disavowed many of the statements she

made to the police, claimed the statements were made “under duress,” blamed Myers for

the murder and proclaimed Harris’ innocence. (R. at 162.) Because the letters were not

part of the record, Harris contemporaneously requested the Oklahoma Court of Criminal

Appeals (OCCA) order an evidentiary hearing on the claim. Harris attached the letters to

his request.

       3
         Myers was originally charged as a co-defendant. In exchange for his testimony
at Harris’ trial, the State reduced the charge to accessory after the fact. Myers pled guilty
to the reduced charge and was sentenced to fifteen years imprisonment. Peters was
charged with and pled guilty to accessory after the fact; she was sentenced to ten years in
prison.

                                            -2-
       The OCCA affirmed Harris’ conviction on January 30, 2006. It determined the

trial court had not abused its discretion in admitting the stolen gun evidence because the

evidence was relevant to show preparation. Because Harris had failed to object to the

admission of the stolen van evidence, it reviewed for plain error and denied relief. It also

rejected Harris’ insufficiency of the evidence claim, finding the evidence, viewed in the

light most favorable to the State, was sufficient for a rational jury to have found him

guilty beyond a reasonable doubt. Moreover, it found Peters not to be an accomplice to

the murder, contrary to Harris’ claim, so corroboration of her testimony was not required.

The OCCA denied Harris’ request for an evidentiary hearing, concluding he had not

shown by clear and convincing evidence that trial counsel was ineffective for failing to

impeach Peters with the letters.

       On January 3, 2007, Harris filed a petition for post-conviction relief in state court.

Among other things, he claimed trial counsel was ineffective for (1) failing to investigate

which, in turn, left him unprepared to effectively cross-examine the State’s witnesses and

(2) eliciting evidence from Myers on cross-examination implicating Harris in another

shooting. Harris also said appellate counsel was ineffective for failing to raise these

ineffective assistance of trial counsel claims on direct appeal. He further argued he was

denied the right to a fair trial when the prosecutor misstated the evidence in opening

statements. Finally, he claimed newly discovered evidence demonstrated Myers had

perjured himself at trial. That evidence consisted of a letter Harris’ trial counsel received

in April 2005 from a Richard Anderson. In the unsigned letter, Anderson claimed that

while in a holding cell with “Brett” (presumably Myers) on June 21, 2004, he overheard

                                            -3-
Myers confess to killing “Otto.” (R. at 46.) Myers also allegedly said Harris did not

become involved until after the murder. Appellate counsel sent an investigator to speak

to Anderson, who was unwilling to sign an affidavit attesting to the facts in the letter.

       The trial court denied the petition and the OCCA affirmed on May 15, 2007. The

OCCA determined the ineffective assistance of trial counsel claims and prosecutorial

misconduct claim could have been but were not raised on direct appeal and therefore

were waived. It also concluded there was nothing in the appellate record indicating

appellate counsel’s representation was deficient or that Harris had been prejudiced by that

representation. Finally, the court determined the newly discovered evidence did not

entitle Harris to a new trial because Anderson was unwilling to sign an affidavit attesting

to the facts in the letter. The OCCA concluded the new evidence was, at best,

impeachment evidence and even if it had been introduced, it would not have changed the

outcome of the trial.

       On July 27, 2007, Harris filed a § 2254 petition raising four grounds. First, he

realleged his ineffective assistance of trial and appellate counsel claims. He also, for the

first time, claimed trial counsel was ineffective for failing to object to the prosecutor’s

misstatement of the evidence in opening statements and appellate counsel was ineffective

for not allowing him sufficient time to review the opening brief and provide comments

prior to it being filed. Second, Harris claimed prosecutorial misconduct based on the

prosecutor misstating the evidence in opening statements. Third, he alleged the

admission of evidence concerning the stolen murder weapon and van deprived him of his

right to a fair trial. Finally, Harris argued the newly discovered evidence demonstrated

                                             -4-
the State had obtained his conviction with perjured testimony and undermined the

reliability of the jury’s verdict. On September 12, 2007, Harris requested and obtained

leave to file an amended § 2254 petition which added a fifth claim—the insufficiency of

the evidence argument he had raised on direct appeal.

       The State filed a motion to dismiss the fifth claim as time-barred. The district

court granted the motion, concluding it was one day late and Harris had not demonstrated

grounds for equitable tolling. In a separate order, the court also rejected Harris’

remaining claims. It acknowledged Harris had, on direct appeal, raised his claim of

ineffective assistance of trial counsel based on counsel’s failure to impeach Peters with

her letters and requested an evidentiary hearing. It determined the OCCA’s denial of an

evidentiary hearing and its rejection of the claim on the merits were neither contrary to

nor an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). It

reasoned that even if counsel’s performance was deficient, Harris failed to show

prejudice, i.e., in light of the other evidence presented at trial, there was not a reasonably

probability that but for the neglected impeachment the result of the proceeding would

have been different. 4

       The district court analyzed the remaining ineffective assistance of trial counsel

claims to determine whether appellate counsel was ineffective for failing to raise them on




       4
        Notably, Peters’ letters also contained prejudicial information, namely, that she
and Harris used drugs and a reference to her and Harris as “Bonnie & Clyde.” (R. at
185.) Moreover, the letters could reasonably be read as Peters’ attempt to reconcile with
Harris.

                                             -5-
direct appeal. Because the ineffective assistance of trial counsel claims lacked merit, 5 the

court determined the OCCA’s rejection of the ineffective assistance of appellate counsel

claim was neither contrary to nor an unreasonable application of Supreme Court law. As

to Harris’ claim that appellate counsel was ineffective for failing to provide him a copy of

the brief in time for him to review it and submit comments, the court determined he had

not exhausted the claim but even if he had, Harris had failed to demonstrate the outcome

of his appeal would have been different had he received a copy of the brief sooner.

       The district court concluded the OCCA’s resolution of Harris’ newly discovered

evidence claim as well as his claim that he was deprived of a fair trial by the admission of

the stolen weapon and van evidence was neither contrary to nor an unreasonable

application of Supreme Court law. As to the former, the state trial court had determined

Anderson’s letter lacked credibility, a finding which is entitled to deference. As to the

latter, the court said the trial court had given a limiting instruction concerning the

evidence’s proper purpose and the stolen gun evidence was relevant to show preparation.

Finally, the district court held it could not reach Harris’ prosecutorial misconduct claim

       5
        Harris had not shown he was prejudiced by trial counsel’s failure to investigate
because he had not identified any information which could have been used to impeach
witnesses nor did he point to any evidence that would have provided him a defense. The
same was true for counsel’s failure to object to the prosecutor’s misstatement of the
evidence in opening statements. The jury was instructed that the statements and
arguments of counsel are not evidence and that the evidence to be considered is witness
testimony, stipulations of the attorneys and the exhibits. Given these instructions, the
court concluded Harris could not establish he was prejudiced by counsel’s failure to
object. As to counsel’s eliciting evidence from Myers implicating Harris in another
shooting, the court explained the same evidence also benefitted Harris because it showed
Myers had sought assistance from others in pinning the murder on Harris. In any event,
Harris could not show prejudice.

                                             -6-
or the ineffective assistance of trial counsel claims based on the failure to investigate and

the improper cross-examination of Myers because the OCCA had rejected them on an

independent and adequate state procedural ground and Harris had failed to show either

cause and prejudice for the default or a fundamental miscarriage of justice resulting from

the failure to consider the claims.

                                II.       DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 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 make such a showing, an applicant 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) (quotations omitted). “When the district court denies a habeas petition

on procedural grounds without reaching the prisoner’s underlying constitutional claim, 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.

       We have thoroughly reviewed the entire record, the district court’s order, as well

as Harris’ combined opening brief and request for a COA. While we disagree with the




                                            -7-
district court that the fifth claim was untimely, 6 we nevertheless conclude the OCCA’s

resolution of that claim—insufficiency of the evidence—was not “contrary to, or

involve[] an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States” nor did it “result[] in a decision that 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). We agree with the district court’s

adjudication of the remaining claims as they are either procedurally barred or Harris


       6
          Harris’ conviction became final on April 30, 2006, when the ninety-day time
period for filing a certiorari petition with the United States Supreme Court expired.
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (“Under [§ 2244(d)(1)(A)], a
petitioner’s conviction is not final and the one-year limitation period for filing a federal
habeas petition does not begin to run until . . . after the United States Supreme Court has
denied review, or, if no petition for certiorari is filed, after the time for filing a petition
for certiorari with the Supreme Court has passed.”) (quotations omitted). However,
because that day fell on a Sunday, he had until May 1, 2006, to file a timely certiorari
petition. See Sup. Ct. R. 30(1). The one-year statute of limitations began the next day,
May 2, 2006, so he had up to and including May 2, 2007, in which to file his § 2254
petition. See United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003). However,
on January 3, 2007, before the statute of limitations had expired, he filed a state court
petition for post-conviction review. The statute of limitations was tolled while that
petition was pending, until May 15, 2007, or a total of 132 days. See 28 U.S.C. §
2244(d)(2). Therefore, the statute of limitations period was extended 132 days from May
2, 2007, or until September 11, 2007. While Harris’ motion to amend and proposed
amended habeas petition containing the fifth claim was not filed until September 12,
Harris signed the certificate of mailing for his motion to amend on September 11. The
district court gave him the benefit of the “prison mail box rule.” See Houston v. Lack, 487
U.S. 266, 270 (1988) (holding pro se prisoner’s notice of appeal is timely if delivered to
prison officials for mailing prior to the filing deadline); see also Price v. Philpot, 420
F.3d 1158, 1164 (10th Cir. 2005) (prison mailbox rule applies to filing of § 2254
petition). Applying that rule, his amended petition, including the fifth claim, is timely.
       The district court erred in concluding the statute of limitations began to run on
May 2, 2006, the last day for filing a certiorari petition with the United States Supreme
Court. The statute did not start to run until May 3, the day following the certiorari
window. See Hurst, 322 F.3d at 1261.

                                             -8-
failed to show the OCCA’s resolution of them satisfied the “highly deferential” § 2254(d)

standard, which is “doubly so” when applied to the ineffective assistance of counsel

claims. See Harrington v. Richter, -- U.S. --, 131 S. Ct. 770, 788 (2011) (quotations

omitted).

      We DENY a COA and DISMISS this matter. We DENY Harris’s request for

appointment of counsel.



                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




                                           -9-
