                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   November 29, 2017
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



CHARLES HERBERT HALEY,

                Petitioner - Appellant,
                                                          No. 17-6111
         v.                                              (W.D. Okla.)
                                                  (D.C. No. 5:16-CV-00331-D)
JOE ALBAUGH,

                Respondent - Appellee.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before KELLY, MURPHY, and MATHESON, Circuit Judges.


         This matter is before the court on Charles Haley’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis

(“IFP”). Haley seeks a COA so he can appeal the district court’s denial of his

28 U.S.C. § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). Because Haley has not

“made a substantial showing of the denial of a constitutional right,” id.

§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.

Additionally, as Haley has failed to present a “reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal,” we deny his

request to proceed IFP. Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir.

1999).
      Haley pleaded guilty in Oklahoma state court to second-degree robbery, in

violation of Okla. Stat. tit. 21, § 792, after two or more former felony convictions.

In his plea, Haley acknowledged his conviction carried a potential sentence of

twenty-years to life and agreed to a sentence of twenty-five years’ imprisonment.

Haley thereafter brought a state petition for post-conviction relief asserting, inter

alia, (1) his sentence was improperly enhanced based on stale prior convictions

and (2) his attorney was ineffective for failing to recognize the habitual offender

enhancement was improper. The Oklahoma Court of Criminal Appeals (“OCCA”)

concluded the merits issue (whether the sentence was, in fact, improperly

enhanced based on stale prior convictions) was waived because it was not asserted

on direct appeal. The OCCA, nevertheless, reached the merits of Haley’s claim

of ineffective assistance, concluding Haley failed to demonstrate either deficient

performance or prejudice.

      Haley then filed the instant § 2254 habeas petition reasserting these two

claims. In an exceedingly thorough Report and Recommendation, a magistrate

judge recommended that Haley’s habeas petition be denied. Choosing to bypass

messy issues surrounding applicability of a procedural bar, the magistrate judge

concluded on the merits that Haley’s habitual offender sentence was supported by

more than two non-stale former felony convictions. See Cannon v. Mullin, 383

F.3d 1152, 1160 (10th Cir. 2004) (“When questions of procedural bar are

problematic, however, and the substantive claim can be disposed of readily, a

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federal court may exercise its discretion to bypass the procedural issues and reject

a habeas claim on the merits.”). Given that determination, the magistrate judge

further concluded the OCCA’s rejection of Haley’s ineffective assistance claim

was neither contrary to nor an unreasonable application of clearly established

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Upon de novo review, the

district court adopted the magistrate judge’s Report and Recommendation and

denied Haley’s petition.

      The granting of a COA is a jurisdictional prerequisite to Haley’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, he must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “reasonable jurists could debate whether (or, for

that matter, agree that) the [motion] should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating

whether Haley has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Id. at 338. Although he need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.




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      Having undertaken a review of Haley’s appellate filings, the magistrate

judge’s comprehensive Report and Recommendation, the district court’s order,

and the entire record before this court pursuant to the framework set out by the

Supreme Court in Miller-El, we conclude Haley is not entitled to a COA. The

district court’s resolution of Haley’s § 2254 petition is not reasonably subject to

debate and the issues he seeks to raise on appeal are not adequate to deserve

further proceedings. Instead, the arguments set out in Haley’s brief on appeal are

clearly at odds with the facts and governing law. Accordingly, this court

DENIES Haley’s request for a COA and DISMISSES this appeal. Haley’s

motion to supplement the record with materials that were not before the district

court is DENIED. See United States v. Kennedy, 225 F.3d 1187, 1191-92 (10th

Cir. 2000) (holding that consideration of material outside of the record before the

district court is generally impermissible). Furthermore, given that this court has

denied his motion to proceed on appeal IFP, we direct Haley to remit forthwith

the full amount of the appellate filing fee.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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