Okla.) (D.C. No. 5:16-CV-00331-D)
KELLY, MURPHY, and MATHESON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy, Circuit Judge.
matter is before the court on Charles Haley's pro se
requests for a certificate of appealability ("COA")
and to proceed on appeal in forma pauperis ("IFP").
Haley seeks a COA so he can appeal the district court's
denial of his 28 U.S.C. § 2254 petition. 28 U.S.C.
§ 2253(c)(1)(A). Because Haley has not "made a
substantial showing of the denial of a constitutional right,
" id. § 2253(c)(2), this court
denies his request for a COA and
dismisses this appeal. Additionally, as
Haley has failed to present a "reasoned, nonfrivolous
argument on the law and facts in support of the issues raised
on appeal, " we deny his request to proceed IFP.
Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir.
pleaded guilty in Oklahoma state court to second-degree
robbery, in violation of Okla. Stat. tit. 21, § 792,
after two or more former felony convictions. In his plea,
Haley acknowledged his conviction carried a potential
sentence of twenty-years to life and agreed to a sentence of
twenty-five years' imprisonment. Haley thereafter brought
a state petition for post-conviction relief asserting, inter
alia, (1) his sentence was improperly enhanced based on stale
prior convictions and (2) his attorney was ineffective for
failing to recognize the habitual offender enhancement was
improper. The Oklahoma Court of Criminal Appeals
("OCCA") concluded the merits issue (whether the
sentence was, in fact, improperly enhanced based on stale
prior convictions) was waived because it was not asserted on
direct appeal. The OCCA, nevertheless, reached the merits of
Haley's claim of ineffective assistance, concluding Haley
failed to demonstrate either deficient performance or
then filed the instant § 2254 habeas petition
reasserting these two claims. In an exceedingly thorough
Report and Recommendation, a magistrate judge recommended
that Haley's habeas petition be denied. Choosing to
bypass messy issues surrounding applicability of a procedural
bar, the magistrate judge concluded on the merits that
Haley's habitual offender sentence was supported by more
than two non-stale former felony convictions. See Cannon
v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004)
("When questions of procedural bar are problematic,
however, and the substantive claim can be disposed of
readily, a federal court may exercise its discretion to
bypass the procedural issues and reject a habeas claim on the
merits."). Given that determination, the magistrate
judge further concluded the OCCA's rejection of
Haley's ineffective assistance claim was neither contrary
to nor an unreasonable application of clearly established
Supreme Court precedent. See 28 U.S.C. §
2254(d)(1). Upon de novo review, the district court adopted
the magistrate judge's Report and Recommendation and
denied Haley's petition.
granting of a COA is a jurisdictional prerequisite to
Haley's appeal from the denial of his § 2254
petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, he 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 "reasonable
jurists could debate whether (or, for that matter, agree
that) the [motion] should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further." Miller-El,
537 U.S. at 336 (quotations omitted). In evaluating whether
Haley 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 he 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.
undertaken a review of Haley's appellate filings, the
magistrate judge's comprehensive Report and
Recommendation, 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, we conclude
Haley is not entitled to a COA. The district court's
resolution of Haley's § 2254 petition is not
reasonably subject to debate and the issues he seeks to raise
on appeal are not adequate to deserve further proceedings.
Instead, the arguments set out in Haley's brief on appeal
are clearly at odds with the facts and governing law.
Accordingly, this court DENIES Haley's
request for a COA and DISMISSES this appeal.
Haley's motion to supplement the record with materials
that were not before the district court is
DENIED. See United States v.
Kennedy, 225 F.3d 1187, 1191-92 (10th Cir. 2000)
(holding that consideration of ...