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

                            FOR THE TENTH CIRCUIT                            August 15, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
THOMAS H. CROWDER, JR.,

      Petitioner - Appellant,

v.                                                        No. 18-6104
                                                   (D.C. No. 5:17-CV-01132-R)
JIMMY MARTIN, Warden,                                     (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      Thomas Crowder seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss

the appeal.

                                           I

      Crowder was convicted in Oklahoma state court of lewd or indecent acts with

a child under sixteen. He was sentenced to 25 years in prison with all but the first

twelve years suspended. After his attempts at gaining relief through state

proceedings were unsuccessful, Crowder filed a § 2254 habeas petition in district

court. He asserted multiple claims for relief, including insufficient evidence,

      *
         This order is not binding precedent, except under the doctrines of law of the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.
vagueness, ineffective assistance of counsel, and actual innocence. A magistrate

judge recommended that his petition be denied. After considering Crowder’s

objections, the district court adopted the recommendation and denied relief. This

timely appeal followed.

                                           II

      A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1). We may issue a COA “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To

satisfy this standard, Crowder must show “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, 

, 484 (2000)

(quotation omitted).

      On appeal, Crowder advances three arguments: (1) the state presented

insufficient evidence to convict him; (2) the Oklahoma statute under which he was

convicted is unconstitutionally vague; and (3) he received ineffective assistance of

trial counsel.1 Because Crowder is pro se, we hold his pleadings to “a less stringent

standard than formal pleadings drafted by lawyers” but do not “assume the role of

advocate.” Hall v. Bellmon, 

, 1110 (10th Cir. 1991).




      1
        Crowder expressly waives arguments made below regarding ineffective
assistance of appellate counsel and actual innocence.
                                           2
       As to Crowder’s insufficient evidence argument, “the pertinent question is

whether the evidence introduced at the trial resulting in the defendant’s conviction is

sufficient to allow a rational trier of fact to convict.” Matthews v. Workman, 

, 1185 (10th Cir. 2009). In support of his conviction, the state presented

five witnesses, including Crowder’s alleged victim, whose testimony directly

inculpated Crowder. The conclusion of the Oklahoma Court of Criminal Appeals

(“OCCA”) that this evidence was sufficient for a conviction was reasonable.

       Crowder also argues that the Oklahoma statute under which he was

convicted—lewd or indecent acts with a child under sixteen under Okla. Stat. tit. 21,

§ 1123—is unconstitutionally vague. Specifically, he contends that the statute does

not indicate that touching a victim through clothing is prohibited. To pass

constitutional muster, a statute must be “set out in terms that the ordinary person

exercising ordinary common sense can sufficiently understand and comply with,

without sacrifice to the public interest.” United States v. Hines, 

, 727

(10th Cir. 1982) (quotation omitted). The statute at issue in this case makes it a

crime to “touch . . . the . . . private parts of any child under sixteen (16) years of age

in any lewd or lascivious manner . . . .” § 1123(2). Although not binding, several

Oklahoma decisions have noted that the statute does not refer to nudity or nakedness.

See, e.g., Heard v. State, 

, 183 (Okla. Crim. App. 2009) (“The plain

wording of Section 1123 does not include the word ‘naked’ or ‘naked body’ or

‘naked private parts.’”). The OCCA reasonably concluded that § 1123 is sufficiently



                                             3
clear to put an ordinary person on notice that sexual touching through a child’s

clothing is prohibited.

      Finally, we reject Crowder’s ineffective assistance of counsel argument. To

prevail on such a claim, Crowder must show that “counsel’s performance fell below

an objective standard of reasonableness” and “there is a reasonable probability that,

but for counsel’s errors, the outcome of the proceedings would have been different.”

Hain v. Gibson, 

, 1231 (10th Cir. 2002). Crowder contends trial

counsel was ineffective for advising him not to testify at trial. But Crowder

acknowledged on the record that trial counsel discussed the advantages and

disadvantages of testifying and that Crowder understood it was his decision. Under

these circumstances, counsel’s conduct was reasonable. See Cannon v. Mullin, 

, 1171 (10th Cir. 2004).

                                          III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Crowder’s motion to proceed in forma pauperis is GRANTED.




                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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