                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                      November 18, 2008
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court

 JOE LYNN PADDOCK,

           Petitioner-Appellant,
 v.                                                            No. 08-6114
 STATE OF OKLAHOMA; ERIC                               (D.C. No. CV-05-00707-R)
 FRANKLIN, Warden,                                         (W. D. Oklahoma)

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


       Joe Lynn Paddock, an Oklahoma state prisoner, seeks a certificate of appealability

(COA) in order to challenge the district court’s denial of his 28 U.S.C. § 2254 application

for federal habeas relief. Because Paddock has failed to satisfy the standards for the

issuance of a COA, we deny his request and dismiss the matter.

                                             I.

       In 2003, Paddock was tried by a jury in the District Court of Logan County,

Oklahoma, and convicted of eight criminal offenses: Count I, conspiracy to manufacture a

controlled dangerous substance, after former felony conviction; Count II, unlawful


       *
          This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
possession of a controlled dangerous substance (methamphetamine) with intent to

distribute, after former felony conviction; Count IV, knowingly concealing stolen

property, after former felony conviction; Count V, driving with a suspended license;

Count VI, operating a vehicle with an expired tag and decal; Count VII, failure to carry

security verification; Count VIII, unlawful possession of a radio set capable of receiving

law enforcement transmissions, after former felony conviction; and Count IX, possession

of a controlled dangerous substance without a tax stamp, after former felony conviction.

The trial judge, in accordance with the jury’s recommendations, sentenced Paddock to

fifty years’ imprisonment on each of Counts I and II, ten years’ imprisonment on each of

Counts IV, VIII, and IX, one year imprisonment on Count V, time served on Count VI,

and thirty days in the county jail on Count VII. The sentences on Counts I and II were

ordered to be served consecutively, and the remaining sentences were ordered to be

served concurrently to each other and the sentence on Count II.

       Paddock filed a direct appeal alleging, in pertinent part, that repeated instances of

prosecutorial misconduct deprived him of his right to a fair trial and resulted in the jury

recommending imposition of the maximum possible term of incarceration on each count

of conviction. The OCCA, reviewing for plain error, agreed that “the prosecutor made

repeated references during the trial concerning [Paddock’s] exercise of his Constitutional

right to remain silent and personal attacks that had no relevance except to influence the

jury.” Paddock v. State, No. F-2003-336, slip op. at 2-3 (Okla. Crim. App. June 23,

2004). The OCCA concluded that the error “was harmless as to guilt, but not harmless

                                              2
with respect to sentencing.” Id. at 3. Accordingly, the OCCA modified Paddock’s

sentences on Counts I and II “to twenty-five (25) years, to be served consecutively to

each other and the sentences on Counts IV, V, VI, VII, and IX, to be served concurrently

with Count II and with each other.”1 Id.

       On June 21, 2005, Paddock, appearing pro se, initiated these federal habeas

proceedings. Paddock’s petition asserted only the prosecutorial misconduct claim he had

previously raised on direct appeal. On November 17, 2006, the magistrate judge assigned

to the case issued a report and recommendation concluding that “the OCCA’s decision

that the instances of prosecutorial misconduct were harmless as to the jury’s finding of

guilt [wa]s not contrary to or an unreasonable application of Supreme Court law.” ROA,

Doc. 16 at 3. More specifically, the magistrate judge concluded that, “in light of the

substantial evidence of P[addock]’s guilt presented at his trial, . . . none of the[] instances

of alleged prosecutorial misconduct so infected his trial with unfairness as to render his

conviction a denial of due process.” Id. at 21 (citing Donnelly v. DeChristoforo, 416 U.S.

637, 645 (1974)). The magistrate judge further concluded that, “[t]o the extent [Paddock]

s[ought] habeas relief in the form of further sentence modification, . . . such claim

fail[ed].” Id. at 5. In support of this conclusion, the magistrate judge noted that the two

sentences modified by the OCCA on direct appeal, were “well within the maximum

sentence of life set by the Oklahoma legislature for such offenses by a prior convicted


       1
       Judge Chapel filed a concurring/dissenting opinion agreeing with the decision to
modify Paddock’s sentences, but voting to run all sentences concurrently.

                                               3
felon.” Id. On December 15, 2006, the district court issued an order adopting the report

and recommendation in part, but remanding the matter to the magistrate judge “to address

the issue of whether prosecutorial misconduct affected the jury’s recommendation as to

how the sentences on Counts One and Two were to be served.” Id., Doc. 18 at 2.

       On February 29, 2008, the magistrate judge issued a supplemental report and

recommendation concluding that Paddock was “not entitled to habeas relief based on his

allegation that prosecutorial misconduct resulted in the imposition of consecutive

sentences.” Id., Doc. 21 at 5. The magistrate judge offered six reasons in support of this

conclusion. First, the magistrate judge noted that “[t]he Oklahoma Legislature ha[d]

vested sentencing judges with the authority to order sentences to be served concurrently

or consecutively,” id., and that, “[e]ven assuming the prosecutor’s remarks influenced the

jury’s recommendation of consecutive sentences, the trial judge, as provided by

Oklahoma law, reviewed the jury’s recommendations and in his discretion determined

that P[addock]’s sentences in Counts One and Two were to be served consecutively,” id.

at 5-6. Thus, the magistrate judge noted, Paddock’s “consecutive sentencing claim [wa]s

in essence a challenge to the trial court’s exercise of discretion under the authority of state

law – a claim that does not provide a basis for granting federal habeas relief.” Id. at 7.

Second, the magistrate judge noted that, on direct appeal, the OCCA found merit to

Paddock’s claim of prosecutorial misconduct and modified his “sentences for his

convictions in Counts One and Two from fifty years on each count to twenty-five years

on each count.” Id. “These [modified] sentences,” the magistrate judge noted, “as


                                              4
enhanced under Oklahoma’s general recidivist statute . . . , were well below the maximum

punishment of life imprisonment authorized under Oklahoma law.” Id. Third, the

magistrate judge noted that “if a state appellate court has authority to exercise its own

discretion and modify a jury sentence on appeal as a matter of state law,” which the

OCCA did under state law, “no due process violation occurs when it does so.” Id. at 8

(citing Carbray v. Champion, 905 F.2d 314, 317-18 (10th Cir. 1990), and Clemons v.

Mississippi, 494 U.S. 738, 746 (1990)). Fourth, the magistrate judge noted that Paddock

“ha[d] provided no relevant Supreme Court law that would demonstrate that the OCCA’s

modification of [his] sentences in Counts One and Two and the determination that such

sentences [we]re to be served consecutively violate[d] [his] rights under the federal

constitution.” Id. Fifth, the magistrate judge noted that Paddock had “wholly fail[ed] to

show that either the trial judge or the OCCA increase[d] [his] sentence beyond the

maximum authorized statutory sentence or engaged in factfinding that resulted in

increased punishment with respect to [his] sentences in Counts One and Two,” and thus

had failed to establish any violation of his Sixth Amendment rights. Id. at 10. Finally,

and relatedly, the magistrate judge noted that “the Oklahoma legislature ha[d] created a

presumption that” multiple sentences “w[ould] be served consecutively,” and therefore

criminal defendants, such as Paddock, did “not have the legal right to concurrent

sentencing.” Id. at 10-11. Paddock neither filed objections to the magistrate judge’s




                                              5
report nor sought an extension of time to do so.2 Accordingly, on March 27, 2008, the

district court adopted the report in its entirety and denied Paddock’s habeas petition.

       The district court subsequently, in response to Paddock’s notice of appeal, denied

him a COA. Paddock has now filed a formal application for a COA with this court.

                                             II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In

order to make that showing, a prisoner 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) (internal quotation marks

omitted).

       In assessing whether Paddock has made these showings, we do not undertake a



       2
         Although we normally apply a “firm waiver rule,” under which a timely objection
to the magistrate judge’s report and recommendation is a condition for appellate review,
e.g., Wardell v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006), Paddock asserts on appeal
that he did not receive a copy of the magistrate judge’s supplemental report and
recommendation through the prison mail system, and was unaware of it until he received
the district court’s order adopting the report and denying his habeas petition. Assuming
these allegations to be true, we conclude that the interests of justice dictate suspending
our “firm waiver” rule and reviewing the merits of Paddock’s request for a COA. See id.

                                              6
“full consideration of the factual or legal bases adduced in support of the claims.” Miller-

El, 537 U.S. at 323. Rather, “[t]he COA determination under § 2253(c) requires an

overview of the claims in the habeas petition and a general assessment of their merits.”

Id.

       With these principles in mind, we have carefully reviewed Paddock’s appellate

pleadings and the record on appeal. We conclude, for substantially the same reasons set

forth in the magistrate judge’s supplemental report and recommendation, that Paddock

has failed to establish his entitlement to a COA. In particular, we conclude that

reasonable jurists could not debate whether the OCCA’s modification of Paddock’s

sentences on direct appeal was both authorized under Oklahoma law and in accord with

due process. See Okla. Stat. tit. 22, § 1066 (2008) (“The appellate court may reverse,

affirm or modify the judgment or sentence appealed from . . . .”); Carbray, 905 F.2d at

318 (“[I]f a state appellate court has authority to exercise its own discretion and to modify

a jury sentence on appeal as a matter of state law, no due process violation occurs.”).

       We therefore DENY Paddock’s request for a COA and DISMISS the matter. We

GRANT Paddock’s motion to proceed in forma pauperis on appeal.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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