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

                            FOR THE TENTH CIRCUIT                            March 30, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 ALEJANDRO URQUIZA,

       Petitioner - Appellant,

 v.                                                           No. 19-5066
                                                  (D.C. No. 4:16-CV-00237-TCK-JFJ)
 JOE ALLBAUGH,                                                (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges.
                 _________________________________

      Alejandro Urquiza filed an application for a writ of habeas corpus under

28 U.S.C. § 2254 challenging his Oklahoma state-court convictions. The district

court denied relief. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    Background

      In November 2012, a jury convicted Urquiza of drug-related offenses under

Oklahoma law. His convictions and sentences were affirmed by the Oklahoma Court


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
of Criminal Appeals (“OCCA”) in January 2014. The Oklahoma trial court

subsequently denied his application for post-conviction relief, and the OCCA

affirmed. Urquiza then filed a § 2254 habeas application in district court asserting

five grounds for relief: (1) ineffective assistance of trial counsel, (2) prosecutorial

misconduct, (3) involuntary confession, (4) double jeopardy, and (5) insufficient

evidence. The district court held that some of his claims were procedurally barred. It

denied relief after addressing the merits of the remaining claims. The district court

also denied a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c).

      In this court, Urquiza sought a COA as to all of the claims that he raised in his

§ 2254 application. A previous panel granted him a COA on two claims, specifically,

(1) whether his trial counsel rendered ineffective assistance and the district court

erroneously declined to provide an evidentiary hearing; and (2) whether the

petitioner’s statements were not voluntary based on his lack of an adequate

understanding of English and the failure to advise him of his rights under the Vienna

Convention.

II.   Discussion

              When reviewing the denial of a habeas corpus petition, we are
      generally subject to two different frameworks of review, depending upon
      whether the state courts addressed the merits of the claim for relief. If the
      state courts have not heard the claim on its merits, we review the district
      court’s legal conclusions de novo and its factual findings, if any, for clear
      error. If the state courts have addressed the claim on its merits, we review
      the state court ruling under the standard enunciated under 28 U.S.C. § 2254.
Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000) (internal quotation marks omitted).



                                            2
      A.     Ineffective Assistance of Trial Counsel

      Urquiza argues that his trial counsel provided ineffective assistance by failing

to meet with him more frequently and not using an interpreter, by not seeking a

hearing to challenge the voluntariness of his confession, by failing to call a witness to

rebut the presumption that he understood English, and by failing to investigate and

challenge a police officer’s credibility.

      Urquiza asserted this ineffective-assistance claim for the first time in his

state-court application for post-conviction relief. The state court held that the claim

was procedurally defaulted because Urquiza had not raised it in his direct appeal.

The OCCA affirmed.

       The district court held that Urquiza’s ineffective-assistance claim was

procedurally defaulted for purposes of federal habeas review because the state court

had denied it based upon an independent and adequate state procedural rule. See

Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999) (holding that “Oklahoma’s

procedural rule barring post-conviction relief for claims petitioner could have raised

on direct appeal constitutes an independent and adequate ground barring review of

petitioner’s . . . claim”); see also Hale, 227 F.3d at 1330 n.15 (noting this court has

repeatedly found that Oklahoma has consistently applied its procedural rule to

preclude claims on post-conviction review that could have been but were not raised

on direct appeal).

       More specifically, the district court held that Oklahoma’s procedural rule was

adequate to bar Urquiza’s ineffective-assistance claim involving his trial counsel

                                            3
because he was represented by different counsel on direct appeal and he could have

requested a limited remand in that proceeding for an evidentiary hearing to develop

the facts underlying his claim. See Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir.

2014) (holding ineffective-assistance claim was procedurally barred where the

petitioner was represented by different counsel on direct appeal and could have

requested a limited remand in that proceeding). Finally, the district court held that

Urquiza failed to overcome his default of this claim by showing both cause and

actual prejudice or that a fundamental miscarriage of justice would result from

dismissal of the claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      Urquiza addresses the district court’s procedural-default analysis in a single

paragraph:

              The district court concluded that Oklahoma’s [rule] regarding the
      procedure to seek a limited remand on direct appeal to resolve claims of
      ineffectiveness of counsel, was adequate for resolution of the claim, so the
      finding was that, “Petitioner cannot overcome the default.” Although it is
      true that Appellant had separate counsel on appeal, given the fact that much
      of the information about his trial counsel’s personal problems [was]
      unknown during the time of his direct appeal, the language barrier may well
      have prevented Appellant from communicating with the indigent defense
      attorney handling the direct appeal.
Aplt. Opening Br. at 12 (citation omitted). We construe this contention as

challenging only the district court’s holding regarding the adequacy in this case of

Oklahoma’s procedure for seeking a limited remand on direct appeal to develop the

facts underlying Urquiza’s ineffective-assistance-of-trial-counsel claim. 1


      1
         We do not construe Urquiza’s brief as challenging the district court’s holding
that he failed to overcome his default of his ineffective-assistance claim. He does not
                                           4
       Urquiza points to his discovery (at some undisclosed time following his trial)

of a civil petition filed by his trial counsel, alleging that his former girlfriend’s

infidelity had caused counsel to “suffer[] severe emotional distress, continued loss of

sleep, [and an] inability to perform his job as once before because of a nervous

condition.” Aplt. App., Vol. 1 at 64. Urquiza contends this petition shows that his

trial counsel was suffering from serious emotional problems at the time he

represented Urquiza. But as the district court found, his trial counsel claimed in the

petition that he was not aware of his girlfriend’s infidelity until June 2013, see id. at

62, well after the conclusion of Urquiza’s trial in November 2012. Therefore, the

court held that trial counsel’s allegations in the civil suit were not relevant to

Urquiza’s ineffective-assistance claim. The district court further held that, “to the

extent trial counsel suffered from emotional issues more generally, Petitioner could

have requested an investigation by appellate counsel. Trial counsel allegedly

appeared in court with a black eye and smelling like alcohol, which were serious red

flags known to Petitioner during trial.” Id., Vol. 2 at 378.

       Urquiza does not deny that he observed these red flags regarding his counsel’s

behavior during his trial. Nor does he claim that, although he was aware of these

issues, he was, in fact, unable to effectively communicate his concerns to appellate

counsel. He instead asserts only that “the language barrier may well have prevented”

him from communicating with his counsel. Aplt. Br. at 12. Urquiza therefore fails to


mention the cause-and-prejudice standard, nor does he contend that a failure to
consider the claim will result in a fundamental miscarriage of justice.
                                             5
demonstrate error in the district court’s holding that Oklahoma’s limited-remand

procedure was adequate.

      Urquiza also contends that the district court erred in denying his request for an

evidentiary hearing to develop evidence supporting the merits of his

ineffective-assistance claim. But the district court did not reach the merits of this

claim, holding instead that it was procedurally defaulted. And Urquiza does not

argue that he sought and was denied an evidentiary hearing to develop evidence

supporting his contention that Oklahoma’s procedural rule was not independent and

adequate, or facts showing that he could overcome his default.

       Consequently, we affirm the district court’s denial of relief on Urquiza’s

ineffective-assistance claim because it is procedurally barred and he did not

overcome his default.

      B.     Voluntariness of Confession and Advisement of Rights Under the
             Vienna Convention

      Urquiza argues that his statements to police officers were not voluntary due to

his lack of understanding of English and the failure to advise him of his rights under

the Vienna Convention. Urquiza raised this claim in his direct appeal. The OCCA

held that his statements were made knowingly and intelligently, and that he suffered

no prejudice from the State’s failure to inform him of his right to contact the Mexican

consulate pursuant to the Vienna Convention.

      Because the state court addressed this claim on the merits, Urquiza must

satisfy one of the “difficult” standards set forth in § 2244(d) to obtain habeas relief.


                                            6
Davis v. Sharp, 943 F.3d 1290, 1297 (10th Cir. 2019) (internal quotation marks

omitted). He must show that the state court’s adjudication of his claim:

      (1) resulted in a decision that was contrary to, or involved an unreasonable
      application of, clearly established Federal law, as determined by the
      Supreme Court of the United States; or
      (2) resulted 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)(1)-(2). Thus, Urquiza must show more than error by the OCCA

in adjudicating this claim. See White v. Woodall, 572 U.S. 415, 419 (2014) (“[E]ven

clear error will not suffice.” (internal quotation marks omitted)); Wood v. Allen,

558 U.S. 290, 301 (2010) (“[A] state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in

the first instance.”). Moreover, the state court’s factual determinations are

“presumed to be correct” and Urquiza has “the burden of rebutting the presumption

of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

      Applying the standards in § 2254(d) and (e)(1), the district court denied habeas

relief on Urquiza’s claim that his confession was involuntary. On appeal, he argues

that the evidence “leads to a fair probability that [his statements] were involuntary,”

“it was error to allow the alleged statements . . . to be presented to the jury,” and

“significant questions are presented regarding the Miranda waiver.” Aplt. Br. at

15-16. Urquiza does not mention the OCCA’s adjudication of this claim in his direct

appeal. He does not contend under § 2254(d)(1) that the OCCA’s decision was

contrary to, or involved an unreasonable application of, any Supreme Court case.

Nor does he argue under § 2254(d)(2) that the OCCA unreasonably determined the
                                            7
facts based upon the evidence presented. Urquiza therefore provides this court no

basis to find error in the district court’s ruling. Accordingly, we affirm the denial of

habeas relief on Urquiza’s claim that his confession was involuntary.

       C.    Denial of a COA on Remaining Claims

       We deny Urquiza’s application for a COA on his other three claims because he

fails to “ma[k]e a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

III.   Conclusion

       The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




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