                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                February 4, 2013
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court

 RONALD DEWAYNE MILLER,

             Petitioner - Appellant,                    No. 12-5185
                                            (D.C. No. 4:09-CV-00305-GKF-PJC)
 v.                                                   (N.D. Oklahoma)
 GREG PROVINCE, Warden,

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.


      Applicant Ronald Dewayne Miller, proceeding pro se and in forma

pauperis, seeks a certificate of appealability (COA) to appeal the denial by the

United States District Court for the Northern District of Oklahoma of his

application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(B)

(requiring COA to appeal denial of § 2254 application). We deny a COA and

dismiss the appeal.

I.    BACKGROUND

      In 2006 Applicant was convicted in Oklahoma state court on two counts of

sexually abusing a minor and one count of furnishing alcohol to a minor. He

appealed the convictions and sentences to the Oklahoma Court of Criminal
Appeals (OCCA). Two grounds for appeal are relevant here. First, Applicant

argued that comments by the prosecutor during closing argument improperly

vouched for the victim’s credibility. He identified four comments: (1) “She’s

making every effort to be honest. To recall. She’s trying to tell you to the best of

her ability this is what happened to me.” R., Vol. 1 at 51–52 (Br. of Aplt. at 5–6,

Miller v. State, No. F-2006-1060 (Okla. Crim. App. July 3, 2007)) (internal

quotation marks omitted). (2) “She stayed in that shelter because you know why?

It happened.” Id. at 52 (emphasis and internal quotation marks omitted). (3)

“Unfortunately, in these types of cases, there’s rarely other evidence.” Id.

(brackets and internal quotation marks omitted). (4) “Do you think the state

prosecutes people who don’t abuse their children?” Id. (internal quotation marks

omitted). He argued in the alternative that his counsel’s failure to object to these

comments rendered counsel’s performance constitutionally deficient.

      Second, Applicant argued that questions by the trial judge during voir dire

bolstered the victim’s credibility and aroused societal alarm, thereby depriving

him of a fair trial. In support of this claim, he pointed to questions concerning

how prospective jurors would feel about a witness who is uncomfortable

testifying to sexual abuse, and to questions concerning whether they thought that

crime is a problem in the community. And he again added that his counsel’s

failure to object to the questions constituted ineffective assistance.




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      The OCCA affirmed. It held that Applicant had failed to show plain error

in the prosecutor’s comments, that Applicant had not shown prejudice from his

counsel’s failure to object to the comments, that the trial judge’s voir dire

questions had not bolstered testimony or aroused societal alarm, and that

Applicant had “failed to show either that defense counsel’s performance in [not

objecting to the questions] was deficient or a reasonable probability that the

outcome of the trial would have been different if counsel would have objected.”

Id. at 86 (Summ. Op. at 2, Miller, No. F-2006-1060 (Okla. Crim. App. Mar. 17,

2008)).

      Later, Applicant sought postconviction relief in state court on the grounds

of ineffective assistance of appellate counsel and actual innocence. The trial

court denied relief, and the OCCA affirmed the denial.

      On May 21, 2009, Applicant filed his § 2254 application in district court,

asserting three grounds for relief: (1) prosecutorial misconduct (and ineffective

assistance of counsel in failing to object to the alleged misconduct); (2) improper

voir dire questioning by the trial judge (and ineffective assistance of counsel in

failing to object to the questions); and (3) actual innocence. The court denied

relief. In this court Applicant pursues his claims of prosecutorial misconduct,

ineffective assistance of counsel in failing to object to the alleged prosecutorial

misconduct, and improper voir dire questioning by the trial judge.

II.   DISCUSSION

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      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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 other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “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). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.




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Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. Therefore, because the OCCA

adjudicated each of Applicant’s claims on the merits, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of

[his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      We now turn to the claims for relief Applicant pursues in this court. As

instances of prosecutorial misconduct, Applicant’s brief in this court points to the

same comments as did his brief on direct appeal to the OCCA. With one

exception, we agree with the district court that, read in context, “the prosecutor’s

comments were proper comments on the evidence rather than improper vouching

for [the victim’s] credibility,” R., Vol. 1 at 162 (Op. & Order at 6, Miller v.

Province, No. 09-CV-305-GKF-PJC (N.D. Okla. Oct. 25, 2012)), and that

therefore AEDPA requires denial of relief with respect to those comments. The

exception is the prosecutor’s rhetorical question, “[D]o you think the State

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prosecutes people who don’t abuse their children?” Id. That comment, which

refers to the decision to prosecute, was not tied to the evidence at trial; after all,

the decision to prosecute predates the trial. The comment clearly insinuated that

the prosecutor had personal knowledge of guilt aside from hearing the trial

evidence. This was highly improper. See Lawn v. United States, 355 U.S. 339,

359 n.15 (1958) (implying that prosecutor’s statements would have been improper

if he had insinuated that they were “based on personal knowledge or on anything

other than the testimony of [the] witnesses given before the jury”); United States

v. Lopez-Medina, 596 F.3d 716, 740 (10th Cir. 2010) (“The cardinal rule of

closing argument is that counsel must confine comments to evidence in the record

and to reasonable inferences from that evidence.” (brackets and internal quotation

marks omitted)). Nevertheless, we cannot say that the OCCA unreasonably

determined that Applicant had failed to show that the remark deprived him of a

fair trial or that he was prejudiced by his counsel’s failure to object to it. See

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (defendant claiming

prosecutorial misconduct must establish that “the prosecutors’ comments so

infected the trial with unfairness as to make the resulting conviction a denial of

due process” (internal quotation marks omitted)); Strickland v. Washington, 466

U.S. 668, 694 (1984) (defendant claiming ineffective assistance of counsel must

establish that he suffered prejudice, meaning that there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different”). Thus, we deny a COA on Applicant’s

claims of prosecutorial misconduct and ineffectiveness of counsel.

       As to Applicant’s challenge to the voir dire questions by the trial judge, he

has not persuaded us that there is anything debatable about the district court’s

rejection of this claim. The Supreme Court has “stressed the wide discretion

granted to the trial court in conducting voir dire in . . . areas of inquiry that might

tend to show juror bias.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991).

Applicant has not cited to this court any case authority prohibiting the judge’s

questions. We deny a COA on this issue.

III.   CONCLUSION

       We DENY a COA and DISMISS the appeal.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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