                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                             TENTH CIRCUIT                       June 9, 2016

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

CARLOS G. SANCHEZ,

            Petitioner-Appellant,                 No. 16-6027
v.                                         (D.C. No. 5:15-CV-00079-R)
                                                  (W.D. Okla.)

JASON BRYANT, Warden,

            Respondent-Appellee.



      ORDER DENYING A CERTIFICATE OF APPEALABILITY
        AND LEAVE TO PROCEED IN FORMA PAUPERIS


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.



     Mr. Carlos Sanchez, an Oklahoma prisoner, sought a writ of habeas

corpus in U.S. District Court. Unsuccessful, he wants to appeal. To do so,

however, he needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A)

(2012). The district court denied the certificate, and Mr. Sanchez asks us

for one. We deny his request.

                            Procedural History

     In state court, Mr. Sanchez was convicted of (1) aggravated

trafficking in illegal drugs and (2) possession of a firearm while
committing a felony. For these crimes, Mr. Sanchez was sentenced to

concurrent prison terms of 30 years and 2 years. The Oklahoma Court of

Criminal Appeals affirmed, prompting Mr. Sanchez to seek habeas relief in

federal district court below. The magistrate judge recommended denial of

the habeas petition, and the district judge adopted the recommendation.

Mr. Sanchez requests (1) a certificate of appealability so that he can appeal

the denial of habeas relief and (2) leave to proceed in forma pauperis.

                Standard for Certificate of Appealability

      To obtain a certificate of appealability, Mr. Sanchez must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). Mr. Sanchez can meet this standard “by demonstrating

that jurists of reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

      When a claim has been adjudicated on the merits in state court, a

federal district 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.”


                                       2
28 U.S.C. 2254(d)(1)-(2) (2012). “Under the ‘contrary to’ clause, a federal

[district] court may grant the writ if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] or . . . decides a case

differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

Under the “unreasonable application” clause, the federal district court may

grant the writ only if “the state court’s application of clearly established

federal law was objectively unreasonable.” Id. at 409.

               Issue One: Bias of the U.S. Magistrate Judge

      Mr. Sanchez contends that in the habeas proceedings, the magistrate

judge showed bias in his report and recommendation by providing a one-

sided statement of facts. This contention is not reasonably debatable.

      A certificate of appealability on Mr. Sanchez’s claim of bias is

appropriate only if reasonable jurists could find that the magistrate judge’s

statement of facts demonstrated judicial bias “so extreme as to display

clear inability to render fair judgment.” Liteky v. United States, 510 U.S.

540, 551 (1994).

      Mr. Sanchez has not satisfied this burden for two reasons: (1) He did

not show actual bias on the part of the magistrate judge, and (2) the district

judge independently considered the magistrate judge’s recommended

conclusions.



                                       3
      First, Mr. Sanchez did not show that the magistrate judge was biased.

According to Mr. Sanchez, the magistrate judge’s statement of facts

omitted exculpatory facts and drew unfair factual inferences. These

omissions and unfair inferences, Mr. Sanchez argues, establish the

magistrate judge’s actual bias. We disagree, for the putative omissions and

inferences would not lead any reasonable jurist to question the magistrate

judge’s neutrality.

      Second, the magistrate judge did not actually rule on the habeas

petition. Instead, the magistrate judge simply recommended rulings to the

district judge, who made his own decision on how to rule. In making this

decision, the district judge exercised de novo review, meaning that he did

not defer to the magistrate judge. See Northington v. Marin, 102 F.3d

1564, 1570 (10th Cir. 1996) (stating the standard for a district judge’s

review of magistrate judges’ recommended rulings). As a result, even if the

magistrate judge had been biased, no reasonable jurist could have found

prejudice.

      For both reasons, we deny a certificate of appealability on Mr.

Sanchez’s allegation of bias on the part of the magistrate judge.

                Issue Two: Application of Stone v. Powell

      State officers found drugs in Mr. Sanchez’s car after making a traffic

stop and searching the car. Mr. Sanchez contends that the stop and search

violated the Fourth Amendment because (1) the officers lacked probable

                                      4
cause for the stop and (2) the officers extended the stop longer than

necessary to effectuate the stop’s purpose. Based on these alleged

violations of the Fourth Amendment, Mr. Sanchez contends that the state

trial court should have excluded the evidence found in the car. On habeas

review, the federal district court declined to consider these claims, relying

on Stone v. Powell, 428 U.S. 465 (1976).

      In Stone, the U.S. Supreme Court held that federal habeas relief

cannot be granted based on a Fourth Amendment violation if the state

prisoner had a full and fair opportunity to litigate the Fourth Amendment

claim in state court. Stone, 428 U.S. at 494. Mr. Sanchez argues that the

state appellate court failed to provide a full and fair opportunity to litigate

the issue by issuing an irrational decision.

      A full and fair opportunity to litigate a claim “includes, but is not

limited to, the procedural opportunity to raise or otherwise present a

Fourth Amendment claim.” Gamble v. Oklahoma, 583 F.2d 1161, 1165

(10th Cir. 1978). A Fourth Amendment claim has not been fully and fairly

heard, however, when “the state court willfully refuses to apply the correct

and controlling constitutional standards.” Id.

      In state court, Mr. Sanchez raised the Fourth Amendment claims in a

motion to suppress and in an appeal to the Oklahoma Court of Criminal

Appeals. According to Mr. Sanchez, the state appellate court failed to

sufficiently address the Fourth Amendment claims. We disagree with this

                                       5
assessment of the state appellate opinion. In our view, any reasonable

jurist would interpret the state appellate opinion as a rejection of Mr.

Sanchez’s constitutional claims.

      The state appellate court had to consider the validity of the traffic

stop because it affected the constitutionality of the resulting search. See

Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter,

the decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has occurred.”). The state

appellate court ultimately concluded that the trial court had not erred in

determining that the stop was permissible. Sanchez v. Oklahoma, Case No.

F-2013-1128 (Okla. Crim. App. Dec. 15, 2014) (unpublished).

      The state appellate court then addressed “the scope and duration of

the seizure.” Id. In doing so, the court held that the stop had not taken

more time than needed to carry out the purpose of the stop. Id.

      Any reasonable jurist would conclude that Mr. Sanchez had full and

fair opportunities in the state trial and appellate courts to litigate his

Fourth Amendment claims. As a result, habeas relief is unavailable under

Stone v. Powell, requiring denial of a certificate of appealability on the

Fourth Amendment claims.

             Issue Three: Admission of Prejudicial Evidence

      Mr. Sanchez also alleges a deprivation of due process when the trial

court allowed prejudicial testimony by a law enforcement officer. The

                                        6
challenged testimony included the officer’s statements that (1) Mr.

Sanchez had been travelling on an interstate that constituted a “drug

corridor” for traffickers, (2) Mr. Sanchez’s body language during the

traffic stop had indicated deception, and (3) drug traffickers often use

older persons, like Mr. Sanchez, as drug couriers.

      The federal district court could grant habeas relief only if the state

trial court’s evidentiary rulings had “rendered the trial so fundamentally

unfair that a denial of constitutional rights result[ed].” Mayes v. Gibson,

210 F.3d 1284, 1293 (10th Cir. 2000). Federal courts must “approach such

[fundamental-fairness] analysis with considerable self-restraint,” reversing

state-court rulings only in “‘the most serious cases, which truly shock the

conscience as well as the mind.’” United States v. Rivera, 900 F.2d 1462,

1477 (1990) (quoting United States v. Penn, 647 F.2d 876, 880 (9th Cir.

1980) (en banc)).

      In our view, no reasonable jurist could find that the state trial court

had violated Mr. Sanchez’s right to due process by allowing the officer’s

testimony. Thus, Mr. Sanchez is not entitled to a certificate of

appealability on this issue.

                      Issue Four: Discovery Violation

      Mr. Sanchez claims that the State committed a discovery violation

under Oklahoma law by failing to disclose one of his prior arrests before

using that arrest at trial. This discovery violation, Mr. Sanchez contends,

                                       7
also constitutes a denial of his right to due process under the U.S.

Constitution. The Oklahoma Court of Criminal Appeals rejected this

argument on direct appeal, concluding that the State had not committed a

discovery violation.

      We can assume, without deciding, that the State committed a

discovery violation. But the alleged discovery violation would result in a

denial of due process only if the nondisclosure rendered the trial

fundamentally unfair. See Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.

2000). If Mr. Sanchez were allowed to appeal, our court would decide the

appeal based on “the entire proceedings, including the strength of the

evidence against the petitioner.” Le v. Mullin, 311 F.3d 1002, 1013 (10th

Cir. 2002) (per curiam).

      As the district court noted, the evidence against Mr. Sanchez was

substantial. He was found travelling from California to Arkansas in a

rental car containing a significant supply of drugs hidden inside the car

door. Mr. Sanchez had not only the drugs but also the tools within his

reach needed to retrieve the drugs. In light of this evidence, the fairness of

the trial is not subject to reasonable debate. Thus, we conclude that Mr.

Sanchez is not entitled to a certificate of appealability on this issue.

                   Issue Five: Prosecutorial Misconduct

      Mr. Sanchez alleges that the prosecutor’s closing argument violated

the constitutional right to a fair trial by (1) inserting impermissible

                                       8
personal opinion and facts not in evidence, (2) mocking the defense theory,

and (3) shifting the burden of proof to Mr. Sanchez.

I.    The Due Process Standard

      Mr. Sanchez’s first two claims of prosecutorial misconduct implicate

a general right to due process. Claims of prosecutorial misconduct are

ordinarily considered under the fundamental-fairness standard. Torres v.

Mullin, 317 F.3d 1145, 1159 (10th Cir. 2003). When applying this

standard, we consider the prosecutor’s comments in the context of the

proceeding as a whole. United States v. Young, 470 U.S. 1, 11 (1985). In

doing so, we examine the strength of the evidence against the defendant

and the cautionary steps taken by the court to counteract any improper

remarks. Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002). In addition,

we exercise caution when interpreting offending comments, for “a court

should not lightly infer that a prosecutor intends an ambiguous remark to

have its most damaging meaning or that a jury, sitting through lengthy

exhortation, will draw that meaning from the plethora of less damaging

interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

II.   Insertion of Personal Opinions and References to Facts Not in
      Evidence

      If Mr. Sanchez were allowed to appeal, our court would consider

whether the jury might “reasonably believe that the prosecutor [was]

indicating a personal belief in the witness’ credibility, either through


                                      9
explicit personal assurances of the witness’ veracity or by implicitly

indicating that information not presented to the jury supports the witness’

testimony.” United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).

Where the prosecutor does not personally vouch for a witness in this way,

his statements constitute permissible “fair comment” on the evidence.

United States v. Hartsfield, 976 F.2d 1349, 1354-55 (10th Cir. 1992). If the

prosecutor’s comments are improper, we decide whether the improper

conduct resulted in a denial of due process. United States v. Kravchuk, 335

F.3d 1147, 1153 (10th Cir. 2003).

      Mr. Sanchez points to the prosecutor’s statements during closing

arguments regarding the value of methamphetamine and the usual routes

for drug smuggling operations, characterizing these statements as personal

opinions. In addition, Mr. Sanchez contends that there was no evidence to

support the prosecutor’s statements regarding forfeiture procedures in drug

cases and the cost of a rental car.

      The statement regarding drug-smuggling routes does not indicate

personal belief in the truth of any testimony. The prosecutor made one

statement, however, that could reasonably be interpreted as an indication

of personal agreement with the veracity of a witness’s testimony:

      450 grams to a pound. That’s $45,000 a pound. If only two of
      those are methamphetamine, that’s almost $100,000. If all ten
      of them are methamphetamine, it’s closer to half a million.
      Now, you know which I think of those is the truth. You can
      decide what you think.

                                      10
TR Vol. III, at 28 (emphasis added). Although this comment might

have been improper, it did not taint the outcome and no reasonable

jurist could question the fundamental fairness of the trial. As a

result, Mr. Sanchez is not entitled to a certificate of appealability on

this issue.

III.   Mocking the Defense Theory

       At trial, the prosecutor said that it would have been a “wild

coincidence” if the defendant had not knowingly possessed the drugs found

in his rental car. Id. at 30.

       According to Mr. Sanchez, this statement involved mockery of his

defense. In our view, all reasonable jurists would reject this contention, for

the prosecutor’s remark involved a fair comment on the evidence. See

Hooper v. Mullin, 314 F.3d 1162, 1172-73 (10th Cir. 2002).

IV.    Shifting the Burden of Proof

       In closing argument, the prosecutor noted the lack of evidence to

substantiate Mr. Sanchez’s defense theory. According to Mr. Sanchez, this

statement constituted an effort to shift the burden of proof.

       It is true that a defendant cannot be required to prove his innocence.

See Mullaney v. Wilbur, 421 U.S. 684, 703 (1975); Torres v. Mullin, 371

F.3d 1145, 1158 (10th Cir. 2003). But the prosecutor’s comment did not

effectively deny Mr. Sanchez the presumption of innocence.


                                      11
      In closing argument, the prosecutor acknowledged the State’s burden

of proving every element, but contended that the evidence showed guilt. In

these circumstances, no jurist could reasonably credit Mr. Sanchez’s

characterization of the prosecutor’s closing argument.

                                     * * *

      Reasonable jurists could not debate the district court’s rejection of

the habeas claims involving the prosecutor’s closing arguments. Thus, Mr.

Sanchez is not entitled to a certificate of appealability on this issue.

            Issues Six and Seven: Sufficiency of the Evidence

      In his sixth and seventh issues, Mr. Sanchez argues that the State

presented insufficient evidence for a conviction. In issue six, Mr. Sanchez

asserts that there was no evidence of his possession of drugs in the rental

car. In issue seven, Mr. Sanchez argues that because there was insufficient

evidence of drug trafficking, there was also insufficient evidence of

possession of a firearm while committing a felony.

      “A challenge to a state conviction brought on the ground that the

evidence cannot fairly be deemed sufficient to have established guilt

beyond a reasonable doubt states a federal constitutional claim.” Jackson

v. Virginia, 443 U.S. 307, 322 (1979). Challenges to the sufficiency of

evidence to support a conviction are decided under a highly deferential

standard. Id. at 319. The question is “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact

                                      12
could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (emphasis in original). We presume the correctness of the

factual findings by the Oklahoma Court of Criminal Appeals unless Mr.

Sanchez rebuts the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1) (2012).

      To demonstrate possession of drugs, the State needed to present

evidence that Mr. Sanchez had “knowingly [held] the power and ability to

exercise dominion and control over [the drugs].” United States v. Massey,

687 F.2d 1348, 1354 (10th Cir. 1982).

      At trial, the State presented evidence that

           illegal drugs had been stowed inside the rear door of the rental
            car and

           Mr. Sanchez had tools inside the car that would allow him to
            open the door panels to access the drugs.

From this evidence, the jury could reasonably infer that Mr. Sanchez had

possession of the drugs. Therefore, the evidence was sufficient for a

conviction on drug trafficking.

      Because there was sufficient evidence to support the drug

conviction, all reasonable jurists would reject Mr. Sanchez’s challenge to

the sufficiency of evidence on the gun charge. Thus, Mr. Sanchez is not

entitled to a certificate of appealability on issues six and seven.




                                      13
               Issue Eight: Proportionality of the Sentence
                     for Aggravated Drug Trafficking

      Mr. Sanchez contends that his 30-year sentence for aggravated drug

trafficking is grossly disproportionate to his crimes. The district court

rejected this contention, and this disposition is not reasonably debatable.

      The U.S. Supreme Court has recognized a constitutional right under

the Eighth Amendment to proportionality between the sentence and the

crime. Lockyer v. Andrade, 538 U.S. 63, 72 (2003). The constitutional right

to proportionality is “narrow,” forbidding “only extreme sentences that are

grossly disproportionate to the crime.” United States v. Williams, 576 F.3d

1149, 1165 (10th Cir. 2009); see also Lockyer v. Andrade, 538 U.S. 63, 77

(2003) (“The gross disproportionality principle reserves a constitutional

violation for only the extraordinary case.”).

      The state appeals court concluded that Mr. Sanchez’s sentence was

“within the range of punishment provided by law.” Sanchez v. Oklahoma,

Case No. F-2013-1128 (Okla. Crim. App. Dec. 15, 2014) (unpublished).

That conclusion was consistent with Supreme Court precedent. In Harmelin

v. Michigan, the Supreme Court upheld a life sentence, without the

possibility of parole, for possession of 650 grams or more of cocaine.

Harmelin v. Michigan, 501 U.S. 957, 961, 996 (1991). And in Hutto v.

Davis, the Supreme Court upheld a 40-year sentence for possession with




                                      14
intent to distribute and distribution of only 9 ounces of marijuana. 454

U.S. 370, 370, 375 (1982) (per curiam).

      In light of these holdings, the state appeals court could reasonably

have determined that Mr. Sanchez’s sentence was constitutional. Mr.

Sanchez was caught while transporting distributable quantities of

methamphetamine, and drug trafficking is widely recognized as a

particularly serious crime. E.g., Harmelin v. Michigan, 501 U.S. 957, 1002

(1991); United States v. Angelos, 433 F.3d 738, 751-52 (10th Cir. 2006).

As a result, no reasonable jurist could conclude that Mr. Sanchez’s 30-year

sentence was grossly disproportionate to his conviction for aggravated

drug trafficking.

                       Issue Nine: Cumulative Error

      Finally, Mr. Sanchez relies on the cumulation of constitutional

violations that may otherwise be harmless. Because we conclude that no

reasonable jurist would find any constitutional errors, we conclude that

Mr. Sanchez is not entitled to a certificate of appealability on this issue.

See United States v. Gonzalez, 596 F.3d 1228, 1244 (10th Cir. 2010)

(denying a certificate of appealability on a claim of cumulative error

because our court had found no merit to any of the other claims).

                                 Disposition

      We deny Mr. Sanchez’s request for a certificate of appealability and

dismiss the appeal.

                                      15
                   Leave to Proceed in Forma Pauperis

      The district court denied Mr. Sanchez leave to proceed in forma

pauperis, certifying that an appeal would not be taken in good faith. See 28

U.S.C. § 1915(a)(3) (2012). Mr. Sanchez asks us to grant leave to proceed

in forma pauperis. We decline to do so, for we agree with the district court

that the appeal is not taken in good faith because all of the appeal points

are frivolous. See Rolland v. PrimeSource Staffing, LLC, 497 F.3d 1077,

1078 (10th Cir. 2007) (denying leave to proceed in forma pauperis based

on our conclusion that the appeal had not been taken in good faith).


                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge




                                      16
