                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 18, 2018
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                               TENTH CIRCUIT



MARSHALL DEAN ALSTON,

             Petitioner - Appellant,
                                                       No. 17-6104
v.
                                               (D.C. No. 5:16-CV-00534-D)
                                                      (W.D. Okla.)
KAMERON HARVANEK, Warden,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before KELLY, MURPHY, and MATHESON, Circuit Judges.


      Proceeding pro se, Marshall Dean Alston 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 that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Alston’s request to proceed in forma pauperis in

this matter is granted.

      Alston filed a § 2254 petition challenging two Oklahoma state convictions:

No. CF-2014-22, a conviction for unlawful possession of a controlled dangerous

substance with intent to distribute; and No. CD-2014-21, a conviction for

unlawful distribution of a controlled dangerous substance. Both convictions
resulted from guilty pleas. In response to Respondent’s motion to dismiss, the

matter was referred to a magistrate judge who addressed the timeliness of the

habeas petition in a Supplemental Report and Recommendation. The district

court adopted the Supplemental Report and Recommendation, granting

Respondent’s motion in part and denying it in part. As to Alston’s challenge to

his conviction in case No. CF-2014-21, the district court concluded his federal

habeas claims were time barred. Specifically, Alston’s conviction became final

on September 19, 2014. The one-year limitations period set out in 28 U.S.C.

§ 2244(d)(1)(A) expired on September 21, 2015, but Alston’s § 2254 petition was

not filed until May 23, 2016. The district court rejected Alston’s argument that

the one-year limitations period was tolled because he sought relief from

conviction No. CF-2014-21 in a state post-conviction application he filed on July

17, 2015. 1 The district court concluded that resolution of the issue was controlled

by the decision of the Oklahoma Court of Criminal Appeals (“OCCA”) which

ruled that Alston’s July 2015 state post-conviction application did not contain a

challenge to his conviction in case No. CF-2014-21. See Estelle v. McGuire, 502

U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”). After considering

and rejecting the arguments Alston presented in his objections to the

      1
       A second state post-conviction application that Alston filed after the one-
year limitations period had already expired did not toll the limitations period.
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

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Supplemental Report and Recommendation, the district court dismissed Alston’s

§ 2254 challenge to his conviction in case No. CF-2014-21 as untimely. As to

Alston’s challenge to his conviction in case No. CF-2014-22, the district court

concluded Alston’s § 2254 habeas petition was timely filed and ordered

Respondent to respond to Alston’s amended habeas petition.

      After Respondent filed its brief, the magistrate judge prepared a Second

Supplemental Report and Recommendation addressing the bases on which Alston

sought habeas relief with respect to his conviction in case No. CF-2014-22.

After reviewing the Second Supplemental Report and Recommendation and

considering Alston’s written objections, the district court adopted the

recommended ruling and denied Alston’s § 2254 petition. As to Alston’s claims

that (1) the OCCA erred by failing to permit him to file a direct appeal out of

time, (2) his double jeopardy rights under the Oklahoma Constitution and

Oklahoma law were violated, and (3) he was denied a right under Oklahoma law

to a preliminary hearing, the district court concluded the claims were not

cognizable in a § 2254 proceeding because they only implicated errors of state

law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010). The district court addressed

Alston’s claims of ineffective assistance of counsel by applying the standard set

forth in the Antiterrorism and Effective Death Penalty Act. The court concluded

Alston failed to demonstrate the OCCA’s adjudication of his Sixth Amendment

claims was contrary to, or an unreasonable application of, clearly established

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federal law, or resulted in a decision based on an unreasonable determination of

the facts in light of the evidence. 28 U.S.C. § 2254(d). As to Alston’s double

jeopardy claim arising under the United States Constitution, the district court

concluded the claim was procedurally defaulted in Oklahoma state court on an

independent and adequate state procedural ground. See Hickman v. Spears, 160

F.3d 1269, 1271 (10th Cir. 1998) (“A state procedural ground is independent if it

relies on state law, rather than federal law, as the basis for the decision.”

(quotation omitted”)); see also Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.

2008) (“[T]his court has found Oklahoma’s bar of claims not raised on direct

appeal to be independent and adequate.”). The district court refused to address

the claim because Alston failed to show cause for the default and actual prejudice,

or demonstrate that the failure to review the claim would result in a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 772, 750 (1991);

English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).

      As to the claims addressed on the merits by the district court, this court

cannot grant Alston a COA unless he can “demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quotation omitted). As

to the claims dismissed as untimely, Alston is not entitled to a COA unless he

shows both “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

                                          -4-
would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Alston 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.” Miller-El, 537 U.S. at 338 (quotations omitted).

      This court has reviewed Alston’s application for a COA and appellate brief,

the Supplemental Report and Recommendation, the Second Supplemental Report

and Recommendation, the district court’s orders, and the entire record on appeal

pursuant to the framework set out by the Supreme Court and concludes Alston is

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

debatable. Because Alston 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). This

court denies Alston’s request for a COA and dismisses this appeal.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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