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

                            FOR THE TENTH CIRCUIT                          November 7, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 ANTOINE DARNELL LESLIE,

       Petitioner - Appellant,

 v.                                                         No. 18-6097
                                                    (D.C. No. 5:17-CV-01159-HE)
 JASON BRYANT, Warden,                                      (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

          ORDER DENYING A CERTIFICATE OF APPEALABILITY*
                  _________________________________

Before LUCERO, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Antoine Darnell Leslie, an Oklahoma prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal from the district court’s denial of his

28 U.S.C. § 2254 habeas application challenging his drug-trafficking conviction. We

deny a COA and dismiss this matter.

                                 I. BACKGROUND

      While Leslie was driving on Interstate 40 through Oklahoma in September

2013, a state narcotics agent conducted a traffic stop and became suspicious that he

was transporting drugs. A drug dog alerted to Leslie’s car, and agents found twelve



      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
packages of cocaine hidden under the back seat. After a jury found him guilty of

aggravated trafficking in illegal drugs, in violation of Okla. Stat. tit. 63,

§ 2-415(C)(2)(c), the state trial court sentenced him to 35 years’ imprisonment. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed. Leslie’s state

post-conviction proceedings also were unsuccessful.

       Leslie’s federal habeas application raised five claims: (1) the trial court

should have suppressed the cocaine because the agent unreasonably extended the

traffic stop, in violation of the Fourth Amendment; (2) trial counsel was ineffective

in failing to preserve the suppression issue and in failing to call Leslie to testify at the

trial court’s suppression hearing; (3) appellate counsel was ineffective in conceding

the legality of the stop; (4) the state failed to prove all elements beyond a reasonable

doubt; and (5) the prosecutor made improper comments at closing that deprived

Leslie of a fair trial. The magistrate judge recommended that all the claims be

denied: the first claim under Stone v. Powell, 428 U.S. 465, 494 (1976); the third

claim on the merits, under the deferential standards of § 2254(d); and the second,

fourth, and fifth claims as procedurally barred by having been defaulted in state

court. Leslie timely objected. The district court ultimately accepted the magistrate

judge’s recommendations, denied the § 2254 application, and denied a COA.

                                     II. ANALYSIS

       To appeal, Leslie must obtain a COA, which requires making “a substantial

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

demonstration “includes showing that reasonable jurists could debate whether (or, for

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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). For claims denied on the merits, Leslie “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. But for claims denied on procedural grounds, Leslie must

show not only that reasonable jurists could debate “whether the petition states a valid

claim of the denial of a constitutional right,” but also that reasonable jurists could

debate “whether the district court was correct in its procedural ruling.” Id.

A.    First Claim – Fourth Amendment Violations

      Leslie’s first claim alleged Fourth Amendment violations with regard to the

traffic stop. When Leslie challenged the stop in the state trial court, it held a hearing

before declining to suppress the cocaine. Leslie then further challenged the stop

before the OCCA, which upheld the stop. The federal district court held the claim

was precluded by Stone, which bars federal habeas claims concerning Fourth

Amendment violations so long as “the State has provided an opportunity for full and

fair litigation” of the claim. 428 U.S. at 494. The district court rejected Leslie’s

assertions that the state courts’ handling of the claim was not “full and fair” because

the courts should have suppressed the cocaine.

      Leslie was able to argue his Fourth Amendment claims both before the trial

court and before the OCCA, and the state courts considered his challenges under the

appropriate law. Thus, he had a full and fair opportunity to litigate his claims.

                                            3
See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009); Smallwood v.

Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999); Gamble v. Oklahoma, 583 F.2d 1161,

1165 (10th Cir. 1978). Before this court, Leslie reiterates that the state court

proceedings do not satisfy Stone because they were incorrectly decided. But the

opportunity for full and fair litigation is not defeated merely because a party would

have preferred a different outcome. See Matthews, 577 F.3d at 1194 (“Mr. Matthews

argues that Oklahoma misapplied Fourth Amendment doctrine in reaching these

conclusions, but that is not the question before us. The question is whether he had a

full and fair opportunity to present his Fourth Amendment claims in state court; he

undoubtedly did.”). Because no reasonable jurist could debate the district court’s

application of Stone to this claim, we deny a COA.

B.    Third Claim – Ineffective Assistance of Appellate Counsel

      1.     Habeas Standards

      Because the state courts addressed the merits of Leslie’s claim that his

appellate counsel was ineffective, the federal courts review the claim under

§ 2254(d). Cullen v. Pinholster, 563 U.S. 170, 187 (2011). That section precludes

habeas relief unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or (2) “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).



                                            4
      Under § 2254(d)(1), a state-court decision is contrary to Supreme Court

precedent “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 Supreme] Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). And a state court unreasonably

applies Supreme Court precedent if it “identifies the correct governing legal principle

from [the] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413. “[A]n unreasonable application of federal law is

different from an incorrect application of federal law.” Id. at 410. Thus, “for a state

court’s decision to be an unreasonable application of [the] Court’s case law, the

ruling must be objectively unreasonable, not merely wrong; even clear error will not

suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam) (internal

quotation marks omitted).

      As for § 2254(d)(2), “a state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in

the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “Instead, § 2254(d)(2)

requires that we accord the state trial court substantial deference. If reasonable

minds reviewing the record might disagree about the finding in question, on habeas

review that does not suffice to supersede the trial court’s determination.” Brumfield

v. Cain, 135 S. Ct. 2269, 2277 (2015) (brackets, ellipses, and internal quotation

marks omitted).



                                           5
      2.     Substantive Legal Standards

      For ineffective-assistance claims, the clearly established federal law is

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must

demonstrate both that counsel’s performance fell below an objective standard of

reasonableness and that counsel’s deficient performance resulted in prejudice to his

defense. Id. at 687. To overcome the strong presumption that counsel’s performance

was reasonable, the defendant must show that the alleged error was not sound

strategy under the circumstances. Id. at 689. And under the prejudice prong, the

defendant must establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

      3.     Analysis

      Where the state court has ruled on the merits of an ineffective-assistance

claim, “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.” Harrington v. Richter,

562 U.S. 86, 101 (2011). “[A] state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103.



                                            6
      Leslie asserts that appellate counsel was constitutionally ineffective for

conceding the initial validity of the stop under Oklahoma precedent that post-dated

Leslie’s suppression hearing. As the district court noted, under the circumstances, it

would not have been a viable strategy for counsel to continue to contest the initial

validity of the stop. Citing Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.

2013), which itself cited Strickland, the OCCA held that Leslie had failed to show

deficient performance or prejudice. We cannot conclude that any reasonable jurist

could debate whether the OCCA’s ruling was so lacking in justification that Leslie

would qualify for relief under § 2254(d)(1). Likewise, no reasonable jurist could

debate whether the OCCA unreasonably determined the facts in light of the record, so

that Leslie would qualify for relief under § 2254(d)(2). We therefore deny a COA on

Leslie’s claim of ineffective assistance of appellate counsel.

C.    Remaining Claims

      Leslie raised his second, fourth, and fifth claims in his state post-conviction

proceeding rather than in his direct appeal. The OCCA considered the claims to be

waived because they could have been raised in the direct appeal but were not. Thus,

the federal district court held these claims were defaulted in state court. It further

held that the claims were procedurally barred on federal habeas review because

Leslie had failed to establish cause and prejudice to excuse the default. See Coleman

v. Thompson, 501 U.S. 722, 750 (1991). Leslie did not address cause and prejudice

until his objections to the report and recommendation, when he argued for the first

time that cause was established by his appellate counsel’s performance. The district

                                            7
court held that “[b]y not raising [an] independent ineffectiveness claim [regarding

counsel’s failure to raise the claim in the direct appeal] and not even mentioning its

utility as cause and prejudice until his objection, petitioner has waived these

arguments.” R., Vol. I at 235.

      It is well-settled that “[i]n this circuit, theories raised for the first time in

objections to the magistrate judge’s report are deemed waived.” United States v.

Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Before this court, Leslie again

argues that ineffective assistance of appellate counsel was cause for the default. But

he fails to address the district court’s determination that he waived his “cause and

prejudice” argument by not timely raising it. And that failure itself results in a

waiver on appeal of any challenge to the district court’s finding of waiver.

See COPE v. Kan. State Bd. of Educ., 821 F.3d 1215, 1223 (10th Cir. 2016)

(“Appellants do not raise this argument in their opening brief, and so it is waived.”).

With Leslie having failed to challenge the district court’s finding of waiver regarding

cause and prejudice, no reasonable jurist could debate the denial of relief on these

claims. Accordingly, we deny a COA.

D.    District Court’s Fee Orders

      In orders dated May 30, 2018, and June 15, 2018, the district court granted

Leslie leave to proceed without prepayment of fees and costs (IFP), see 28 U.S.C.

§ 1915(a)(1), and ordered partial payment of fees in installments until the total filing

fees were paid, see id. § 1915(b). Section 1915(b), however, does not apply to

§ 2254 actions or appeals therefrom. See United States v. Simmonds, 111 F.3d 737,

                                             8
744 (10th Cir. 1997), overruled on other grounds, United States v. Hurst, 322 F.3d

1256, 1261 n.4 (10th Cir. 2003). Accordingly, while the grant of IFP status stands,

we vacate those portions of the May 30, 2018, and June 28, 2018, orders assessing

partial payment of fees.1 Notwithstanding this directive, Leslie is reminded that

§ 1915(a)(1) excuses only prepayment of fees; he remains liable to pay the full

amount of the appellate filing and docketing fees.

                                  III. CONCLUSION

      Those portions of the district court’s May 30, 2018, and June 15, 2018, orders

assessing partial payment of fees are vacated. A COA is denied, and this matter is

dismissed.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




      1
          We do not decide the fate of the payments made to the district court to date.
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