                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 15, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



ALVIS CLINTON HIGGINS,

              Petitioner - Appellant,
                                                         No. 10-5048
       v.                                             (N.D. Oklahoma)
                                            (D.C. No. 4:06-CV-00429-CVE-TLW)
MIKE ADDISON, Warden,

              Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Proceeding pro se, Alvis Clinton Higgins seeks a certificate of

appealability (“COA”) from this court so he can appeal the district court’s denial

of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing no appeal may be taken from a final order disposing of a § 2254

petition unless the petitioner first obtains a COA). Because Higgins has not

“made a substantial showing of the denial of a constitutional right,” this court

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

      After a jury trial, Higgins was convicted of two counts of lewd molestation,

in violation of Okla. Stat. tit. 21, § 1123(A), and one count of sexual battery, in

violation of Okla. Stat. tit. 21, § 1123(B). After considering the ten challenges
Higgins raised on direct appeal, the Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed the convictions in an unpublished opinion. Higgins then filed

an application for post-conviction relief with the Oklahoma district court, raising

eight claims of error. As to Higgins’s claims of ineffective assistance of appellate

counsel, the state district court applied the test set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and concluded Higgins failed to show his

counsel’s performance was deficient. The court further concluded Higgins’s

claims of ineffective assistance of trial counsel, double jeopardy, and sufficiency

of the evidence had been substantially raised on direct appeal and, thus, the

doctrine of res judicata barred further review. Finally, the court refused to

consider Higgins’s claim that the trial court lacked jurisdiction to sentence him,

concluding the claim was procedurally barred. See Jones v. State, 704 P.2d 1138,

1140 (Okla. Crim. App. 1985). Accordingly, the state district court denied

Higgins’s post-conviction application. The OCCA affirmed the denial of post-

conviction relief on June 21, 2005. Higgins’s second application for post-

conviction relief was also denied by the state district court. On appeal, however,

the OCCA concluded Higgins had been denied a complete appeal in his first post-

conviction appeal through no fault of his own. Accordingly, the OCCA addressed

all of Higgins’s claims of entitlement to post-conviction relief but affirmed the

denial of both post-conviction applications.




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      Higgins filed the instant § 2254 habeas petition on July 26, 2006. In his

petition, Higgins raised seven claims of error. The district court first addressed

the following claims, all of which were previously adjudicated by the Oklahoma

courts: (1) Higgins’s due process rights were violated because he was required to

wear an ankle monitor during his trial; (2) Higgins was denied a fair trial because

members of the group “Bikers Against Child Abuse” attended his trial; (3)

Higgins’s trial was fundamentally unfair because the trial court admitted a

videotaped interview into evidence and permitted the jury to bring the videotape

into the jury room during deliberations; (4) the state presented insufficient

evidence to support the lewd molestation conviction, thereby violating his due

process rights; and (5) Higgins’s appellate counsel provided ineffective

assistance. Applying the standard set forth in the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), the district court concluded that the Oklahoma

courts’ adjudication of these claims was not contrary to, nor an unreasonable

application of clearly established federal law. 28 U.S.C. § 2254(d). The district

court denied Higgins relief on these claims. The court then concluded that

numerous allegations of ineffective assistance of counsel, a claim based on

Crawford v. Washington, 541 U.S. 36 (2004), a challenge to the jury instruction

for the charge of lewd molestation, and a cumulative error claim were all

procedurally defaulted in Oklahoma state court and determined the state

procedural bar was independent and adequate. The district court concluded it was

                                         -3-
procedurally barred from considering the claims because Higgins failed to show

cause for the default and actual prejudice or that the failure to review his claims

would result in a fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 750 (1991).

      This court cannot grant Higgins a COA unless he can 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). In evaluating whether

Higgins has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Higgins is not required

to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      This court has reviewed Higgins’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Higgins is

not entitled to a COA. The district court’s resolution of Higgins’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further




                                          -4-
proceedings. One issue raised in Higgins’s application for COA, however,

deserves further clarification.

      Higgins argues he is entitled to an evidentiary hearing to resolve factual

disputes surrounding the claims relating to the ankle monitor he allegedly wore

throughout the trial. The ankle monitor claim was presented to the OCCA on

direct appeal and relief was denied because nothing in the record before the

OCCA suggested the monitor was visible to the jury. Deck v. Missouri, 544 U.S.

622, 626 (2007) (“The law has long forbidden routine use of visible shackles

during the guilt phase; it permits a State to shackle a criminal defendant only in

the presence of a special need.”). In his first post-conviction application, Higgins

raised an ineffective assistance of counsel claim relating to this issue, arguing his

appellate attorney was ineffective for failing to provide the OCCA with affidavits

from fourteen individuals who averred that they attended Higgins’s trial and could

clearly see the ankle monitor. The state trial court resolved this ineffective

assistance issue without referencing the affidavits provided by Higgins, stating

Higgins’s appellate counsel “presented relevant issues which were supported by

facts and authority sufficient to enable the [OCCA] to consider those issues.”

The OCCA addressed the issue on the merits in Higgins’s second post-conviction

appeal but summarily denied relief. In his counseled § 2254 application, Higgins

raised both the substantive issue and the ineffective assistance issues. The district

court denied relief, concluding (1) the OCCA’s resolution of the substantive issue

                                          -5-
was not contrary to or an unreasonable application of clearly established law and

(2) the ineffective assistance claim was not properly developed. In his pro se

appellate brief, Higgins conflates his substantive claim with his ineffective

assistance claim. It is clear the district court’s denial of habeas relief on both

claims is not reasonably subject to debate. Even assuming the ankle monitor was

worn during trial and was visible to the jury, Higgins has not identified any

Supreme Court holding expressly extending the general prohibition on restraining

a criminal defendant with visible shackles to the factual situation presented here.

See House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008) (“[T]he threshold

determination that there is no clearly established federal law is analytically

dispositive in the § 2254(d)(1) analysis.”).

      Because Higgins has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

Accordingly, this court denies Higgins’s request for a COA and dismisses this

appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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