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

                                    TENTH CIRCUIT                                June 18, 2019

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
  GLENN HARRIS REESE,

                Petitioner - Appellant,

  v.                                                           No. 18-5107
                                                    (D.C. No. 4:15-CV-00418-JHP-JFJ)
  JAMES YATES, Warden,                                      (N.D. Oklahoma)

                Respondent - Appellee.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before McHUGH, KELLY, and MORITZ, Circuit Judges.




       Mr. Glenn Harris Reese, an Oklahoma state prisoner proceeding pro se,1 seeks

a certificate of appealability (“COA”) regarding his jury conviction for attempted

manufacture of methamphetamine in violation of Oklahoma law. After being denied

relief in the Oklahoma Court of Criminal Appeals (“OCCA”), Mr. Reese filed a petition




       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. Reese is pro se, “we liberally construe his filings, but we will not act
as his advocate.” James v. Wadas, 

, 1315 (10th Cir. 2013).
for a writ of habeas corpus under 28 U.S.C. § 2254 in the Northern District of Oklahoma.

The district court denied his petition and denied him a COA. Mr. Reese timely appealed.

       For the following reasons, we deny Mr. Reese’s application for a COA and

dismiss this appeal.

                                        BACKGROUND

       In 2011, Walmart security guard, Josh Sanders, apprehended Mr. Reese for

shoplifting. During the encounter, Mr. Sanders noticed a black bag hanging on the

handlebars of Mr. Reese’s bike. When Mr. Sanders looked inside the bag, he noted a

clear bottle containing a milky white substance. Based on his time as a volunteer for the

local police department in Keifer, Oklahoma, Mr. Sanders “associated” the bottle with

methamphetamine. Tr. Transcript, Vol. II at 238–39, 244–45. After identifying the

contents of the bottle, Mr. Sanders “called the police immediately.” 

       When Officer David Shelby arrived at the Walmart, Mr. Reese’s black bag was

open enough that he could see a clear bottle in the bag. He described the bottle as

“consistent with the appearance of what I have experienced to be one-pot meth labs.” 

At trial, Officer Shelby testified that the most common method of manufacturing

methamphetamine in Oklahoma was the “one-pot” or “shake lab” method—all of the

required ingredients are placed in a plastic bottle and the mixing of the chemical

ingredients causes them to “go[] through the cooking process.” See 

       Officer William Mackenzie also arrived to question Mr. Reese, and he testified

that he Mirandized Mr. Reese using a Miranda card he keeps on his person. Officer

Mackenzie testified that Mr. Reese stated he knew he had a shake lab and “he was going

                                                2
to take it to someone that could gas it out.” 

According to Officer Mackenzie,

Mr. Reese had manufactured methamphetamine before but never sold it. Mr. Reese’s

confession was not recorded, nor did Officer Mackenzie have Mr. Reese sign a written

waiver of his Miranda rights. Mr. Reese did not appear to be under the influence of any

drugs and appeared to understand Officer Mackenzie’s questions. Mr. Reese was then

arrested.

       At trial, a forensic scientist Jared Lieser testified that the examination results of the

substance in the bottle showed that no controlled substances were “detected” but two

ingredients (ammonia and lithium)—commonly used to produce methamphetamine—

were “indicated.” The lab could only establish that ammonia and lithium were

“indicated” because the lab policy requires two separate tests to establish that a chemical

was “detected,” and no second test was performed. The jury convicted Mr. Reese of

attempting to manufacture methamphetamine and petty larceny.

       Mr. Reese appealed his conviction to the OCCA, arguing that the evidence was

insufficient to support the attempted manufacture of methamphetamine conviction. The

OCCA affirmed Mr. Reese’s conviction. Mr. Reese then filed a pro se application for

post-conviction relief in state court raising five grounds for relief: (1) “illegal search and

seizure,” (2) “Miranda violation,” (3) “insufficient evidence,” (4) “ineffective assistance

of [trial] counsel,” and (5) “ineffective assistance of appellate counsel,” relating to

alleged failure to raise the illegal search claim in Mr. Reese’s direct appeal. Dist. Ct. Op.

at 2–3. The state court denied relief on the first four grounds, concluding that they were

waived because they were not raised on direct appeal. The state court denied relief on

                                                  3
ground Five by concluding that the illegal search claim was meritless because “a search

conducted by a private citizen does not constitute a search within the meaning of the

Fourth Amendment,” so appellate counsel was not ineffective for failing to raise it. ROA,

Vol. I at 219. The OCCA summarily affirmed.

       Mr. Reese then filed a pro se habeas petition under § 2254 in the Northern District

of Oklahoma. He alleged the same grounds for relief but expanded his ineffective

assistance of appellate counsel claims to include: (5) the failure of appellate counsel to

raise an illegal search claim on direct appeal, (6) the failure to raise the Miranda violation

on direct appeal, and (7) the failure to raise trial counsel’s deficient performance on direct

appeal. The district court dismissed grounds One, Two, and Four as procedurally barred

and grounds Six and Seven as anticipatorily procedurally barred. But the district court

reached the merits of grounds Three (insufficient evidence) and Five (failure of appellate

counsel the raise the illegal search claim on direct appeal). After reviewing the record, the

district court determined that ground Three failed because it could not “find the OCCA

unreasonably applied federal law.” Dist. Ct. Op. at 15. As to ground Five, the district

court determined that it too failed. The district court agreed with the OCCA that the

“omitted illegal search argument” was “meritless” and therefore ground Five did not

provided a basis for concluding that appellate counsel was ineffective.

       Mr. Reese appealed to this court alleging the same grounds for error brought in the

district court. We deny a COA on all seven grounds and dismiss this appeal.




                                                  4
                                            ANALYSIS

                                      A. Legal Standard

       Because the district court denied a COA, we lack jurisdiction to consider the

merits of Mr. Skaggs’ appeal unless we issue a COA. See 28 U.S.C. § 2253(c)(1)(A);

Miller-El v. Cockrell, 

, 327 (2003). We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Okyere

v. Rudek, 

, 1149 (10th Cir. 2013) (quoting 28 U.S.C. § 2253(c)(2)). That

standard requires “showing that reasonable jurists could debate whether (or, for that

matter, agree that) the [§ 2254 petition] should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed further.”

(quoting Slack v. McDaniel, 

, 484 (2000)). Where a “district

court has rejected the constitutional claims on the merits, the showing required . . . is

straightforward: The petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” 

.

       There is an additional layer of deference where the district court denied habeas

relief on procedural grounds without reaching the underlying constitutional claim. In such

cases, “a COA should issue when the prisoner shows, at least, 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 would find it debatable whether the district court was

correct in its procedural ruling.” 

has two components, “one

directed at the underlying constitutional claims and one directed at the district court’s

                                                  5
procedural holding.” 

Both showings must be made for a court to entertain the

appeal. 

may “prompt[ly]” dispose of the petition under either

component by “proceed[ing] first to resolve the issue whose answer is more apparent

from the record and arguments.” 

whether to issue a COA, we must also consider the deference

AEDPA requires for state court decisions. See Davis v. McCollum, 

, 1319

(10th Cir. 2015). If claims raised in a § 2254 petition were adjudicated on the merits in

state court, “we may only grant relief if the state court’s 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.’” Byrd v. Workman, 

, 1165 (10th Cir. 2011) (citation omitted)

(quoting 28 U.S.C. § 2254(d)(1), (d)(2)). For such claims, “AEDPA imposes a highly

deferential standard for evaluating state-court rulings—one that demands that state-court

decisions be given the benefit of the doubt, and that prohibits us from substituting our

own judgment for that of the state court.” Ellis v. Raemisch, 

, 1083 (10th

Cir. 2017) (quotation marks omitted). For a state prisoner to obtain habeas relief, he

“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.” Harrington v. Richter,

, 103 (2011). If that standard seems “difficult to meet, that is because it was

meant to be.” 

                                                  6
       Thus, the combined standard of review requires Mr. Reese to show that a

reasonable jurist could debate that Mr. Reese’s grounds for relief should not have been

denied by the district court despite the extreme deference federal courts are required to

give to state court determinations. We conclude that Mr. Reese has not met this standard.

       As noted, Mr. Reese raises seven grounds for relief. We agree with the district

court that five of them can be denied on procedural grounds and two on the merits. We

will first address those that we can resolve procedurally (grounds One, Two, Four, Six,

and Seven) and then turn to those that we resolve on the merits (grounds Three and Five).

                                       B. Procedural Bar

       If the state court denied a habeas claim “based on an adequate and independent

state procedural rule,” the claim is procedurally defaulted for purposes of federal habeas

review. Davila v. Davis, 

, 2064 (2017). “A state court finding of

procedural default is independent if it is separate and distinct from federal law.” Duvall v.

Reynolds, 

, 796–97 (10th Cir. 1998) (citing Ake v. Oklahoma, 

,

75 (1985)). That state court determination is also “adequate” if it is “strictly or regularly

followed” and applied “evenhandedly to all similar claims.” Hathorn v. Lovorn, 

, 263 (1982). Once the state raises the independent and adequate state procedural bar,

the burden shifts to the petitioner who, “at a minimum, [is] required to set forth specific

factual allegations as to the inadequacy of the state procedure.” Smallwood v. Gibson,

, 1268 (10th Cir. 1999). A claim is likewise procedurally barred if it has

not been exhausted but would be procedurally barred if petitioner raised it upon returning

to state court. See Anderson v. Sirmons, 

, 1139 (10th Cir. 2007). This

                                                  7
“anticipatory bar” applies when the state court would refuse to consider the merits of the

claim based on an adequate and independent state procedural rule. 

procedural bar applies, a federal court will not review the claim unless the

petitioner can show “cause for the default and actual prejudice as a result of the alleged

violation of federal law” or that a “fundamental miscarriage of justice” will result from

the dismissal of the claim. Coleman v. Thompson, 

, 750 (1991).

       We will first explain why grounds One, Two, and Four are procedurally barred.

Next, we will explain why grounds Six and Seven are anticipatorily procedurally barred.

Finally, we will discuss whether Mr. Reese can overcome the default, ultimately

concluding that he cannot.

1. Grounds One, Two, and Four

       Mr. Reese did not raise grounds One, Two, and Four on direct appeal. Mr. Reese

did not file for post-conviction relief on his original grounds (One through Five) until

after the OCCA denied his direct appeal on what is now ground Three—the sufficiency

of the evidence. The OCCA denied post-conviction relief on grounds One, Two, and Four

finding that issues not raised previously on direct appeal, but which could have been

raised, are waived. Oklahoma law bars review of waived issues unless the petitioner

demonstrates a “sufficient reason” for the earlier omission. See Jones v. State, 

, 1139–40 (Okla. Crim. App. 1985) (quoting Okla. Stat. tit. 22, § 1086); 

(explaining that § 1086 has been “construed” to “bar the assertion of alleged errors which

could have been raised on direct appeal, but were not”).



                                                 8
       This Court has repeatedly determined that § 1086 is independent of federal law

and an adequate procedural bar. See, e.g., Hale v. Gibson, 

, 1330 n.15

(10th Cir. 2000). Thus, the district court’s determination that grounds One, Two, and

Four are procedurally barred under an adequate and independent state ground is not fairly

debatable by reasonable jurists.

2. Grounds Six and Seven

       Mr. Reese did not raise grounds Six (failure to raise the Miranda violation on

appeal) and Seven (failure to appeal based on trial counsel’s deficient performance) to the

state court. They are therefore unexhausted. See Ellis v. Raemisch, 

, 1077–

82 (10th Cir. 2017), cert. denied, 

, 

(2018) (explaining

that AEDPA requires petitioners to exhaust “all available state remedies” by raising an

issue to the highest state court required by state law, either on direct review or in a

postconviction collateral attack). The district court determined these claims were

anticipatorily barred under § 1086. Because neither ground was raised on direct appeal,

§ 1086 would provide an independent and adequate procedural bar if Mr. Reese returned

to state court to exhaust them. See 

(citing Okla. Stat. tit. 22,

§ 1086). Therefore, grounds Six and Seven are anticipatorily barred and no reasonable

jurist could debate whether the district court’s ruling was correct. See 

the Procedural Bar

       We cannot reach the merits of grounds One, Two, Four, Six, or Seven unless

Mr. Reese can demonstrate “cause for the default and actual prejudice as a result of the

alleged violation of federal law” or that a “fundamental miscarriage of justice” will result

                                                  9
from not reaching those grounds. 

. This requires Mr. Reese to

“show that some objective factor external to the defense impeded . . . efforts to comply

with the State’s procedural rules,” Murry v. Carrier, 

, 488 (1986), or

Mr. Reese must establish proof of a “fundamental miscarriage of justice” by

demonstrating that he is actually innocent, McCleskey v. Zant, 

, 494 (1991).

To take advantage of the “actually innocent” test Mr. Reese must present new “evidence

of innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless constitutional

error.” Schlup v. Delo, 

, 316 (1995). Further, this new evidence must “show

that it is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” 

         Mr. Reese argues only that he is factually innocent because the state’s evidence

failed to detect any controlled substance and the lab results did not find any

pseudoephedrine, methamphetamine, or any precursor chemical compounds. The district

court determined that Mr. Reese did not satisfy the actual innocence exception because he

did not point to any new evidence “demonstrating factual innocence, nor d[id his] Reply

contain an explicit assertion that he did not commit the crime.” Dist. Ct. Op. at 8–9. It is

well-established federal law that “‘actual innocence’ means factual innocence, not mere

legal insufficiency,” Bousley v. U.S., 

, 623 (1998), therefore, the district

court’s determination that Mr. Reese has not overcome the default is not fairly debatable

among reasonable jurists. We thus deny a COA on grounds One, Two, Four, Six, and

Seven.

                                                 10
                                            C. Merits

1. Ground Five: Ineffective Assistance of Appellate Counsel

       To establish his ineffective assistance of counsel claim, Mr. Reese must show that

his attorney’s performance was deficient and that he was prejudiced by that deficiency.

Strickland v. Washington, 

, 687 (1984). Performance is deficient when

“counsel’s representation f[alls] below an objective standard of reasonableness.” 

When considering a claim of ineffective assistance of appellate counsel for failure to

raise an issue, however, we look to the merits of the omitted issue, and “[i]f the omitted

issue is without merit, counsel’s failure to raise it does not constitute constitutionally

ineffective assistance of counsel.” Hooks v. Ward, 

, 1221 (10th Cir. 1999)

(quotation marks omitted).

       Mr. Reese alleges he was denied effective assistance of appellate counsel because

his counsel failed to raise on direct appeal the argument that the search and seizure of his

backpack was unreasonable. Mr. Reese argues that the Walmart employee, Mr. Sanders,

violated his Fourth Amendment rights by searching his backpack because Mr. Sanders

had a second job as a volunteer police officer and therefore was a state actor. While it is

true that the action of private individuals “can sometimes be regarded as governmental

action for constitutional purposes,” Lebron v. Nat’l R.R. Passenger Corp., 

,

378 (1995), the Fourth Amendment is not implicated by “a search or seizure, even an

unreasonable one, effected by a private individual not acting as an agent of the

Government or with the participation or knowledge of any governmental official.” United

States v. Jacobsen, 

, 113 (1984) (quoting Walker v. United States, 

649, 662 (1980) (Blackmun, J., dissenting)). The test is whether the individual “in light of

all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or

agent of the state.” Coolidge v. New Hampshire, 

, 487 (1971). To determine

whether a search by a private person becomes a government search, ours is a two-part

inquiry: “1) whether the government knew of and acquiesced in the intrusive conduct,

and 2) whether the party performing the search intended to assist law enforcement efforts

or to further his own ends.” United States v. Souza, 

, 1201 (10th Cir. 2000)

(quotation marks omitted).

       Here, the OCCA found that “counsel’s performance was reasonable because the

omitted illegal-search argument [was] meritless,” reasoning “[t]here is no Fourth

Amendment protection from a search conducted by a private citizen.” ROA Vol. I at 219,

287. The District Court concluded that the OCCA’s determination did not constitute an

unreasonable application of federal law because nothing in the record showed that “the

government knew or acquiesced to the Walmart employee’s decision to look inside

[Mr. Reese’s] backpack.” ROA Vol. I at 287–88. We will not overturn the OCCA

decision unless it constitutes an objectively unreasonable application of federal law.

Cavazos v. Smith, 

, 2 (2011) (per curiam).

       Here, nothing in the record indicates that the government knew of and acquiesced

in the intrusive conduct. Mr. Sanders testified that he is not considered a police officer

nor is he under the jurisdiction of the police department when he is working for Walmart.

The entirety of his employment with the Tulsa Police Department is on a reserve, un-

paid, voluntary basis. Similarly, Mr. Sanders testified that no one from the Tulsa Police

                                                 12
Department urged or asked him to look in the bag. Tr. Transcript Vol. II at 254 (“Nobody

was even there when I looked into the bag.”). Therefore, the correctness of the district

court’s determination that the OCCA did not unreasonably apply federal law in

determining the effectiveness of appellate counsel is not fairly debatable. Accordingly,

we deny a COA as to ground Five.

2. Ground Three: Sufficiency of the Evidence

       We review § 2254 sufficiency of the evidence claims under a “twice-deferential

standard.” Parker v. Matthews, 

, 43 (2012). First, a reviewing court will only

set aside a jury verdict on grounds of insufficient evidence “if no rational trier of fact

could have agreed with the jury.” 

. Second, “a federal court may

not overturn a state court decision rejecting a sufficiency of the evidence challenge . . .

[unless] the state court decision was ‘objectively unreasonable.’” 

v.

Lett, 

, 773 (2010)). The proper inquiry is “whether, after viewing the

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

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 

, 319 (1979) (emphasis in original. A reviewing court will

“presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any . . . conflicts [in the record] in favor of the prosecution.” 

       To determine whether there was sufficient evidence presented at trial to sustain

Mr. Reese’s conviction, the standard must be applied “with explicit reference to the

substantive elements of the criminal offense” as defined by Oklahoma law. 

n.16. Oklahoma law prohibits any person from “manufactur[ing] or attempt[ing] to

                                                  13
manufacture any controlled dangerous substance or possess[ing] . . . any detectable

amount of [certain enumerated substances] . . . with the intent to . . . manufacture a

controlled dangerous substance.” See Okla. Stat. tit. 63 § 2-401(G)(1). Here, Mr. Reese

was convicted of attempting to manufacture a controlled substance. To prove Mr. Reese

attempted to manufacture a controlled substance the State must show that he: (1)

knowingly and intentionally, (2) attempted to manufacture, (3) a controlled dangerous

substance. Okla. Stat. tit. 63 § 2-401(G); see also Okla. Unif. Crim. Jury Instr. CR 6-3.

       The OCCA found all elements were met because Mr. Reese’s knowing possession

of a “shake lab” was an attempt to manufacture methamphetamine, “even if the process

was incomplete—indeed, even if it were impossible under the circumstances.” ROA Vol.

I at 109. The district court found the OCCA determination that the evidence was

sufficient did not constitute an unreasonable application of federal law because

“reviewing the trial transcripts and exhibits in the light most favorable to the State, . . . a[]

rational trier of fact could have found beyond a reasonable doubt that [Mr. Reese]

attempted to manufacture methamphetamine.” Dist. Ct. Op. at 14.

       Mr. Reese argues that the evidence presented at trial was insufficient because the

State failed to prove the second and third elements beyond a reasonable doubt. He argues

the evidence presented at trial proved only an indication of the prohibited substances

rather than a detectable amount as required under Oklahoma law. See Okla. Stat. tit. 63

§ 2-401(G). Mr. Reese asks that this court “take [j]udicial [n]otice of the language of”

§ 2-401(G) and find that an indication does not satisfy this statute. Appellant’s Br. at 17–

18.

                                                  14
       Mr. Reese misinterprets § 2-401(G). He was convicted of attempting to

manufacture methamphetamine, not of possessing a “detectable amount” of one of the

enumerated substances with the intent to manufacture methamphetamine. See Okla. Stat.

tit. 63 § 2-401(G). The “detectable amount” language only applies to the possession of

those enumerated substances. See 

will not overturn the OCCA’s

determination that the evidence was sufficient to sustain a conviction for attempting to

manufacture methamphetamine unless it was “objectively unreasonable.” 

(quoting Renico v. Lett, 

, 773 (2010)).

       Here, the forensic scientist testified that two out of three required substances for

making methamphetamine (ammonia and lithium) were indicated in Mr. Reese’s bottle.

Officer Mackenzie testified2 that Mr. Reese “knew he had a shake lab” and Mr. Reese

“stated that he was going to take it to someone that could gas it out.” Tr. Transcript Vol.

II at 314. Further, Officer Shelby testified that Mr. Reese’s bag contained a bottle which


       2
         Mr. Reese also argues the evidence presented at trial was insufficient because
Officer Mackenzie’s testimony regarding Mr. Reese’s confession is unsupported and
inadmissible under Oklahoma state law and federal Miranda waiver requirements. First,
Mr. Reese argues that the confession is “not admissible under Oklahoma law unless it is
supported by ‘substantial independent evidence which would tend to establish its
trustworthiness.’” Appellant’s Br. at 18 (quoting Short v. State, 

, 1096
(Okla. Crim. App. 1999). However, under 28 U.S.C. § 2254, we review the
“unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” not challenges to the admissibility of evidence
under state law, see 28 U.S.C. § 2254(d)(1), and Mr. Reese has not argued that the
alleged departure from state law amounted to a federal constitutional violation. Second,
Mr. Reese argues Officer Mackenzie failed to get a signed Miranda waiver and therefore
the confession’s admission should be prohibited. As noted above, the Miranda waiver
argument is procedurally barred. Because Mr. Reese has no grounds to challenge the
admissibility of Officer’s Mackenzie’s testimony, we will not exclude it from our
sufficiency of the evidence analysis.
                                                 15
was “consistent with the appearance of what [he] ha[d] experienced to be one-pot meth

labs.” 

Based on this evidence, a rational jury could find that Mr. Reese

knowingly and intentionally attempted to manufacture methamphetamine, a controlled

substance. Therefore, the correctness of the district court’s determination that the OCCA

did not unreasonably apply federal law in determining the sufficiency of the evidence is

not fairly debatable. We deny a COA on ground Three.

                                         CONCLUSION

       We DENY Mr. Reese’s request for a COA and DISMISS this appeal.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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