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

                                     TENTH CIRCUIT                              April 4, 2014

                                                                            Elisabeth A. Shumaker
TIMOTHY RAY BELVIN,                                                             Clerk of Court
           Petitioner – Appellant,
v.                                                             No. 13-7069
                                                     (No. 6:10-CV-00145-RAW-KEW)
MIKE ADDISON, Warden,                                          (E.D. Okla.)
          Respondent – Appellee.


             ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


     Timothy Belvin , a state prisoner in Oklahoma, filed a pro se petition under 28 U.S.C.

§ 2254 seeking habeas corpus relief from his convictions for six child sexual assault and

exploitation charges on which he is serving a life sentence. In his petition, Belvin raised

four grounds for relief: (1) a state statute-of-limitations bar; (2) insufficient evidence; (3)

ineffective assistance of counsel; and (4) a violation of the Eighth Amendment. The

district court adopted the magistrate’s report, denying Belvin relief on each ground. Now

Belvin seeks a certificate of appealability (“COA”) from us to undo this decision.

     A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 28

U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We may issue a

     *
       This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule
32.1.
COA only if the petitioner makes a “substantial showing of the denial of a constitutional

right.” § 2253(c)(2). To make that showing, a petitioner must demonstrate that reasonable

jurists could debate whether his petition should have been resolved differently. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). Even viewing the pleadings before us generously,

Belvin does not give us reason to debate the district court’s careful analysis. Thus, we

deny his request for a COA and dismiss this appeal.

    We first define our standard of review. Belvin argues that we should review his

claims de novo because the state court rendered summary opinions without reasoned

analysis. We’re governed here by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Generally, under AEDPA, we apply a deferential standard of review:

petitioners are entitled to relief only if they can show that the state court’s resolution of

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

established Federal law,” or represented “an unreasonable determination of the facts in

light of the evidence presented.” 28 U.S.C. § 2254(d). But the deferential AEDPA

standard does not apply where a state court fails to address a petitioner’s claim on the

merits. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).

    Here, the state court did address the merits of Belvin’s claims, even if it did not give

extensive reasoning for its conclusions. The claims Belvin presents in his § 2254 petition

were addressed in two orders from the Oklahoma Court of Criminal Appeals (“OCCA”).

The first was a summary opinion in response to Belvin’s direct appeal, in which the court

offered a one-paragraph response to each of Belvin’s claims. The second was an order

affirming denial of post-conviction relief, in which the OCCA quickly disposed of

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Belvin’s ineffective-assistance-of-appellate-counsel claim. The OCCA’s orders certainly

could have been more robust, but we apply AEDPA’s deferential standard of review if “a

state court gives any indication that it addressed all of a petitioner’s federal

constitutional” claims, “even where the state court eschews the far preferable treatment of

explaining the underlying reasoning of the decision.” Le v. Mullin, 311 F.3d 1002, 1011

n.2 (10th Cir. 2002) (internal quotation marks omitted). As such, the district court was

right to apply AEDPA’s deferential standard of review to the state court decisions. See

Aycox, 196 F.3d at 1177 (“Since we have an adjudication on the merits, we must consider

what it means to defer to a decision which does not articulate a reasoned application of

federal law to determined facts. We conclude . . . that we owe deference to the state

court’s result, even if its reasoning is not expressly stated.”). Having set the standard of

review, we address each of Belvin’s four grounds for relief.

    Ground 1: Statute of Limitations

    In his § 2254 petition, Belvin first argued that his convictions on Count 3 (Child

Sexual Abuse) and Count 8 (Lewd Molestation) were barred by the applicable Oklahoma

statutes of limitations. The district court rejected these claims in part because it said

claims regarding the statute of limitations are state-law claims that are not cognizable on

habeas review. As it applies to this case, we find that conclusion is beyond dispute. A

petitioner cannot assert a claim under § 2254 for a violation of state procedure unless it

infringes a specific federal constitutional protection. See Estelle v. McGuire, 502 U.S. 62,

67–68 (1991); Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (“Federal habeas

courts will not . . . review issues of purely state law.”). Belvin invokes his due process
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rights, but a state’s misapplication of its own statute of limitations does not violate federal

due process per se. See Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir. 2000); Erickson

v. Secretary for Dept. of Corrections, 243 F. App’x 524, 527 (11th Cir. 2007); Wilson v.

Mitchell, 250 F.3d 388, 396–97 (6th Cir. 2001); see also Burns v. Lafler, 328 F.Supp.2d

711, 719 (E.D. Mich. 2004) (collecting cases). Even if a misapplication occurred here,

which we do not find, Belvin gives us no reason to believe it violated his federal due

process rights. Thus, we deny Belvin’s COA request on this issue.

    Ground 2: Insufficient Evidence

    Next, Belvin argued that the evidence was insufficient to sustain a conviction for

Count 8 (Lewd Molestation). The applicable statute makes it a felony for any person to

knowingly and intentionally “[l]ook upon, touch, maul, or feel the body or private parts

of any child under sixteen (16) years of age in any lewd or lascivious manner” if the

person is at least three years older than the victim. Okla. Stat. tit. 21, § 1123(A)(2); see

Hilton v. Workman, No. 07-149, 2007 WL 2498786 *3 n.2 (W.D. Okla. Aug., 30, 2007)

(enumerating the elements of § 1123(A)(2)). According to the Oklahoma Uniform Jury

Instructions, the words “lewd” and “lascivious” have the same meaning and signify

“conduct which is lustful and which evinces an eagerness for sexual indulgence.” Id.

    Belvin argues that the prosecution did not establish that he touched the victim in a

lewd or lascivious manner. Among other things, the victim testified that Belvin touched

her genital area with a vibrator when she was ten years old making her feel

uncomfortable. Examining the evidence in the light most favorable to the prosecution, the

magistrate’s report, which was adopted by the district court, found that “any rational trier
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of fact could have found the essential elements of the crime beyond a reasonable doubt.”

R. vol. 1, at 152 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It thus

concluded that “the [Oklahoma Court of Criminal Appeals] determination of this claim

was not contrary to, or an unreasonable application of federal law, and the decision was

not based on an unreasonable determination of the facts presented in the state court

proceeding. 28 U.S.C. § 2254(d).” Id. We agree and deny Belvin’s COA request on this

issue.

    Ground 3: Ineffective Assistance

    In his § 2254 petition, Belvin also argued that his trial counsel, Timothy Haney,

rendered constitutionally ineffective assistance. He said Haney (1) wrongly advised him

to waive his right to trial by jury, (2) failed to raise applicable statutes of limitations, and

(3) failed to secure the written recantation of a state witness. We review this claim

according to the familiar two-part test set forth in Strickland v. Washington, 466 U.S. 668

(1984). First, “[a] petitioner must show that counsel’s performance was deficient.”

Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must show that

counsel’s deficiency “prejudiced the defense.” Id. The magistrate’s report agreed with the

OCCA’s conclusion that Belvin had failed to establish both prongs on any one claim.

    First, the OCCA found that Belvin’s decision to waive a jury trial was not the result

of ineffective assistance of counsel. The district court carefully reviewed the record and

concluded that the OCCA’s decision on this issue was consistent with federal law and not

based on an unreasonable determination of the facts. In his COA request, Belvin points to

his own testimony at the evidentiary hearing that “he always wanted more than one
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person to decide his fate and he did not understand the consequences of the waiver.” See

Petitioner’s Application for a Certificate of Appealability 6, Dec. 30, 2013, CM/ECF No.

10136836. Then he goes on to argue that the deficiency prejudiced his defense. These

arguments do not call into question the district court’s careful analysis. Thus, we deny

Belvin’s COA request on this issue.

    Next, as to Belvin’s claim of ineffective assistance based on a failure to raise the

statutes of limitations, the district court found that Belvin’s attorney was not ineffective

because Count 3 (Child Sexual Abuse) and Count 8 (Lewd Molestation) were brought

within their respective limitations periods and failure to raise a meritless argument does

not constitute ineffective assistance of counsel. See Martin v. Kaiser, 907 F.2d 931, 936

(10th Cir. 1990). We agree.

    As for Count 8, the state charged Belvin with Lewd Molestation of his niece

occurring in 1996 to 1997. In 1997, the limitations period for Lewd Molestation was five

years from discovery of the crime. Okla. Stat. tit. 22 § 152 (1997 Supp.). Lewd

Molestation has been discovered “when any person (including the victim) other than the

wrongdoer or someone in pari delicto with the wrongdoer has knowledge of both (i) the

act and (ii) its criminal nature.” State v. Day, 882 P.2d 1096, 1098 (Okla. Crim. App.

1994).

    Belvin offers no evidence in his § 2254 petition or on appeal showing when the

criminal nature of the acts alleged in Count 8 was discovered. In his § 2254 petition, he

simply asserted that the charge was untimely because the statute of limitations was five

years. The OCCA found that because the limitations period ran from discovery (rather

                                           -6-
than commission) of the crime, Belvin was not entitled to relief. The magistrate agreed.

He accepted the state’s unrebutted assertion that the criminality of the acts was not

discovered until 2004 when the victim became aware of the wrongfulness of Belvin’s

actions and reported them to law enforcement. The criminal case against Belvin was

initiated in 2004.

      Our review of the record indicates that, in fact, the victim testified that the alleged

acts occurred in 2000, in which case the charge was brought within five years of the

commission and discovery of the crime.1 Regardless, Belvin offers no evidence showing

that the state did not bring Count 8 within five years of the discovery of the criminal

nature of the acts. As such, he has not shown that by failing to assert a statute-of-

limitations defense as to Count 8 his counsel’s performance was deficient.

      As for Count 3, before November 1, 2000, the statute of limitations for Child Sexual

Abuse was three years. See Cox v. State, 152 P.3d 244, 249 (Okla. Crim. App. 2006). The

statute was amended on November 1, 2000, setting the limitations period at seven years.

Id.

      Count 3 alleged that Belvin required “E.P. to masturbate in the presence of the

defendant on numerous occasions” between 1999 and 2004. R. vol. 2, at 60. E.P. was

born on May 6, 1987, and he testified that the abuse began when he was 12 years old in a

house on Mulberry Street. He said it also occurred in a house on Elm Street, which he

moved to between eighth and ninth grade.


      1
      The victim of the lewd molestation testified that her birthdate was June 5, 1990.
And she testified the lewd molestation occurred when she was ten years old.
                                             -7-
    The OCCA said that “there was evidence presented at trial that [Belvin] committed

some of the acts charged in Count III after the effective date of the amended statute of

limitations in [Okla. Stat. tit. 22] § 152(C).” R. vol. 1, at 102. The magistrate’s report

found support for the OCCA’s conclusion. Assuming that the victim hadn’t skipped

grades in school, it reasoned that the victim would have been 14 years old at the end of

eighth grade, which would have been in 2001. As such, it concluded, Belvin committed

some of the acts charged in Count 3 after November 1, 2000—the effective date of the

amended statute of limitations.

    In his COA request, Belvin argues the district court’s finding that some of the abuse

occurred in 2001 is wrong because it assumes evidence not in the record, namely, that the

victim had a normal progression in school. But we’re reviewing for ineffective assistance

of counsel, and we maintain a “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. If the

victim completed grades of school a year or more faster than her peers, and thus counsel

should have raised a statute-of-limitations defense, it’s Belvin’s burden to provide that

evidence. The district court’s reasonable assumption explains why Belvin’s attorney did

not raise a statute-of-limitations defense and it explains why the state court concluded

that “there was evidence presented at trial that [Belvin] committed some of the acts

charged in Count III after the effective date of the amended statute of limitations.” R. vol.

1, at 102. Without more from Belvin, we cannot say that the state court’s conclusion that

Count 3 was timely brought is wrong, and thus, he has not shown that his counsel was

ineffective for failing to raise the issue.

                                              -8-
    Finally, we agree with the district court that Belvin failed to show prejudice based on

his counsel’s failure to secure a written recantation of state’s witness, E.P., who was

Belvin’s victim as charged in multiple counts of conviction. To establish Strickland’s

prejudice component, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” 466 U.S. at 694. Here, the jury was presented with the fact that E.P.

recanted, as well as his explanation for the recantation. Despite the recantation, the jury

believed E.P.’s testimony about Belvin’s criminal acts. Belvin has not shown that putting

the recantation in writing would have changed the outcome of the trial.

    Ground 4: The Eighth Amendment

    Finally, in his § 2254 petition, Belvin argued that the concurrent life sentences he

received on Count 3 (Child Sexual Abuse) and Count 7 (Child Sexual Exploitation) were

excessive, in violation of the Eighth Amendment. The magistrate’s report cited United

States v. O’Driscoll, 761 F.2d 589, 599 (10th Cir. 1985), for the proposition that “[t]he

imposition of a severe sentence, within legal limits, is not error.” R. vol. 1, at 157. Then it

denied relief because it said Belvin’s sentences were within statutory limits, citing Okla.

Stat. tit. 10, § 7115 (Child Sexual Abuse) and Okla. Stat. tit. 10, § 7115(G) (Child Sexual

Exploitation). Belvin does not meaningfully address this reasoning in his application for a

COA, and we discern no error.




                                             -9-
      Based on the foregoing, we deny a certificate of appealability and dismiss this

appeal.


                                      ENTERED FOR THE COURT


                                      Gregory A. Phillips
                                      Circuit Judge




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