                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 27, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



PRENTICE E. PONDS, II,

             Petitioner - Appellant,
                                                        No. 08-5019
       v.                                            (N.D. Oklahoma)
                                              (D.C. No. CV-03-216-CVE-SAJ)
CHARLES RAY, Warden,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      This matter is before the court on Prentice E. Ponds’ pro se request for a

certificate of appealability (“COA”). Ponds seeks a COA so he can appeal the

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

(providing no appeal may be taken from a “final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court,” unless the petitioner first obtains a COA). Because Ponds 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).

      Ponds was convicted in Oklahoma state court of Robbery with a Firearm,

after former conviction of a felony, and First Degree Burglary, also after former
conviction of a felony. Ponds was sentenced to twenty-five years’ imprisonment

on the robbery charge and twenty years’ imprisonment on the burglary charge.

The state trial court ordered that the sentences be served consecutively. After

exhausting his state court remedies, Ponds filed the instant § 2254 petition raising

the following four claims: (1) criminal charges against a prosecution witness were

dropped in exchange for the witness’s testimony and the prosecution failed to

reveal that fact to Ponds’s defense attorney; (2) trial counsel was ineffective;

(3) his convictions were based on unreliable in-court identifications; and (4) his

dual robbery and burglary convictions violated an Oklahoma statutory prohibition

against double punishment.

      After reviewing the parties’ briefs and the state court record, the federal

district court issued a comprehensive and well-stated order denying Ponds’s

request for habeas relief. As to Ponds’s contention that his conviction was based

on unreliable in-court identifications, the district court noted the claim had been

resolved on the merits by the Oklahoma Court of Criminal Appeals (“OCCA”).

In resolving the claim, the OCCA applied the governing Supreme Court

precedent, Manson v. Brathwaite, 432 U.S. 98, 114 (1977), and concluded the in-

court identifications of Ponds were reliable even assuming the pretrial

identification procedures were unduly suggestive. Applying the deferential

review standards set out in § 2254(d)(1), the district court concluded the decision

of the OCCA was neither contrary to, nor an unreasonable application of,

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Manson. In addition, the district court undertook an independent review of the

trial transcript and concluded as follows: “Weighing all the factors and

considering the totality of the circumstances, there is no substantial likelihood of

misidentification by [the] victims . . . .” The district court concluded Ponds’s

double-punishment claim was not cognizable in a § 2254 petition because it was

purely a matter of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(holding that it is not the province of federal habeas courts to reexamine state-

court determinations on state-law questions). The district court determined

Ponds’s claim that a witness had received a benefit, in the form of a terminated

prosecution for testifying on the behalf of the prosecution, failed because there

was absolutely no evidence of such a benefit. The OCCA had found, as a matter

of fact, that no such benefit was given. Because Ponds failed to demonstrate the

OCCA’s factual finding was erroneous, he was not entitled to habeas relief. 28

U.S.C. § 2254(e)(1). Finally, under the unique facts of this case (i.e., different

trial and appellate counsel and a sufficiently developed record on direct appeal or

an adequate state avenue to develop the factual bases of the claim), the district

court concluded Ponds’s ineffective assistance of trial counsel claims were

procedurally barred because they were not raised on direct appeal.

      To be entitled to a COA, Ponds 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 “that reasonable jurists could debate whether (or,

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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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Ponds 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 Ponds 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.

      Having reviewed Ponds’s application for a COA and appellate filings, 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, this court concludes Ponds

is not entitled to a COA. The district court’s resolution of Ponds’ § 2254 petition

is not reasonably subject to debate and the issues Ponds seeks to raise on appeal

are not adequate to deserve further proceedings. Accordingly, for those reasons

cogently set out in the district court’s Order, this court DENIES Ponds’ request

for a COA and DISMISSES this appeal.

                                                ENTERED FOR THE COURT




                                                Elisabeth A. Shumaker, Clerk


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