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

                            FOR THE TENTH CIRCUIT                               July 22, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 FLOYD LEE MILLER,

       Petitioner - Appellant,

 v.                                                            No. 19-5024
                                                  (D.C. No. 4:15-CV-00700-TCK-FHM)
 CARL BEAR,                                                    (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

       An Oklahoma jury found Floyd Lee Miller guilty of manufacturing

methamphetamine and resisting arrest. After unsuccessfully challenging his convictions

in the Oklahoma Court of Criminal Appeals (“OCCA”), he filed for federal relief under

28 U.S.C. § 2254 in the Northern District of Oklahoma. The district court denied his

petition and denied a certificate of appealability (“COA”). Mr. Miller has asked this

court for a COA on whether (1) the evidence at trial was constitutionally sufficient to


       *
         After examining the briefs and appellate record, this panel has determined
unanimously to honor Mr. Miller’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
       This order is not binding precedent, except under the doctrines of law of the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.
sustain his conviction for manufacturing methamphetamine, (2) Mr. Miller’s trial and

appellate counsel were ineffective regarding how they handled the issue of the search of

his backpack at the time of arrest, and (3) the district court erred in denying an

evidentiary hearing on Mr. Miller’s ineffective assistance of counsel (“IAC”) claim.

Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA and

dismiss this matter.

                                    I. BACKGROUND

                                 A. Factual Background

       In 2011, Miami, Oklahoma Police Sergeant Michael Kelly saw Mr. Miller walking

down the street with a backpack around 2:00 a.m. Sergeant Kelly pulled his car over and

began speaking with Mr. Miller. When Mr. Miller identified himself as “Punkin’

Miller,” Sergeant Kelly recognized him and recalled there might be warrants for his

arrest. He radioed for backup, Officer Kelly Johnson arrived at the scene, and dispatch

confirmed Mr. Miller had warrants for his arrest.

       Officer Johnson testified at trial that when he arrived, “Sergeant Kelly was talking

to Mr. Miller like they were old friends . . . and told Mr. Miller that he had warrants out

of the county that he needed to take care of.” ROA, Vol. III at 192. Mr. Miller was still

wearing his backpack. As Officer Johnson left his car, Mr. Miller placed the backpack on

the ground next to him and continued talking to Sergeant Kelly.

       Officer Johnson approached the two men and told Mr. Miller to “turn around and

put his hands behind his back” so that he could be handcuffed. 

Mr. Miller



                                              2
initially complied, but once Officer Johnson made physical contact with him, “he took off

running.” 

Officer Johnson described what happened next:

              We went through, and I’m not sure exact distance, maybe a
              yard or two, and once he was trying to step up on a step I was
              able to—in the way my steps were working I was able to
              extend one of my steps to kick his back foot, and he turned
              around and faced me and we both fell to the ground. I
              actually tackled him to the ground at that point.

The officers subdued and arrested Mr. Miller

       The officers then searched Mr. Miller’s backpack, which was still sitting next to

Sergeant Kelly’s car where Mr. Miller had placed it. Officer Johnson said they

conducted the search “because [they were] going to have to take his property . . . to the

county to be booked in and I had to make sure there wasn’t any contraband or weapons in

the backpack.” 

In the backpack, they found a 20-ounce partially melted

plastic bottle that Officer Johnson “thought . . . was a meth lab.” Id.1

       A third officer—Narcotics Detective Hicks—arrived on the scene after Mr.

Miller’s arrest. He examined the bottle and concluded it showed “tell-tale” signs of

methamphetamine manufacturing. ROA, Vol. III at 201-02. Testing on the bottle’s

contents revealed methamphetamine and ephedrine residue. State witnesses testified that

the bottle looked like it had been used as a “shake and bake” one-pot vessel for cooking

methamphetamine. The officers also testified that they did not find any of the “fuel”

necessary to make methamphetamine on Mr. Miller’s person or in his backpack.



       1
        The officers also recovered from the backpack Mr. Miller’s driver’s license
and prescription pill bottles with Mr. Miller’s name on them.
                                              3
                               B. Procedural Background

       The State charged Mr. Miller with (1) manufacturing a controlled dangerous

substance after a felony and (2) resisting arrest. An Oklahoma jury convicted him of both

counts. He was sentenced to 17 years in prison, with two years suspended. Mr. Miller

appealed to the OCCA, arguing the evidence was insufficient to support the

methamphetamine conviction. The OCCA affirmed his conviction and sentence.

       Mr. Miller then sought post-conviction relief in state court. He argued the

officers’ warrantless search of his backpack violated the Fourth Amendment. He further

argued he had not waived this issue because (1) his trial counsel was constitutionally

ineffective for failing to file a motion to suppress and (2) his appellate counsel was

ineffective for failing to argue the Fourth Amendment issue on direct appeal.

       The Oklahoma district court denied Mr. Miller’s Fourth Amendment and IAC

claims, holding that Mr. Miller abandoned his backpack and that he “ha[d] no standing to

object to the search of abandon [sic] property.” ROA, Vol. I at 68.

       Mr. Miller appealed, and the OCCA affirmed. Rejecting Mr. Miller’s arguments

regarding the warrantless search of his backpack, the OCCA stated:

                      Petitioner argues that the warrantless search of his
              backpack, which uncovered the evidence used to convict him,
              was not a valid search incident to arrest because he was
              removed from the backpack and thus it was not within his
              immediate reach and control. However, the District Court did
              not find the search was incident to Petitioner’s arrest. The
              District Court found, and the record provides ample support
              for the finding, that Petitioner placed the backpack on the
              ground and then fled from the arresting officers thereby
              abandoning the backpack. There can be no complaint of


                                              4
              illegal search when police officers search without a warrant
              and seize abandoned property.
                      In attempting to establish that the District Court erred
              by finding Petitioner had abandoned the backpack, Petitioner
              argues that attempting to run a few yards when told he was
              being placed under arrest does not constitute abandonment of
              the property. However, if Petitioner’s actions were not an
              abandonment of the backpack, then the backpack was still
              within the area within Petitioner’s immediate control such
              that he could detonate a bomb or destroy evidence, and the
              officers had legitimate concern for their safety. The officers’
              search would thus fall under the warrantless search exception
              of being incident to Petitioner’s arrest. Petitioner’s appellate
              counsel apparently realized the conundrum that, no matter
              which way he argued the facts of Petitioner’s case, the
              evidence would be admissible under an exception allowing
              the warrantless search. We do not find that Petitioner’s
              appellate counsel was unprofessional, or that the result of his
              appeal would have or should have been different.

ROA, Vol. II at 94-95 (citations omitted).2 In short, the OCCA said the search was valid

under either the abandonment or search-incident-to-arrest exceptions to the warrant

requirement, and therefore rejected his IAC claim.

       Mr. Miller then filed a petition for federal habeas corpus relief under 28 U.S.C.

§ 2254 in the U.S. District Court for the Northern District of Oklahoma. He asserted

three grounds for relief: (1) insufficiency of the evidence, (2) illegal search and seizure

and IAC, and (3) newly discovered evidence. The district court rejected all three grounds




       2
        The OCCA addressed only the effectiveness of Mr. Miller’s appellate counsel
on the merits. It concluded that Mr. Miller’s “trial and appellate counsel were not the
same; therefore, his claims that trial counsel was ineffective are waived because they
could have been raised in his direct appeal.” ROA, Vol. II at 93.

                                              5
and denied his request for a COA. Mr. Miller timely appealed, challenging the district

court’s resolution of the first two issues.

                                      II. DISCUSSION

       Mr. Miller contends (1) the trial evidence was constitutionally insufficient to

sustain his conviction for manufacturing methamphetamine, and (2) trial and appellate

counsel were ineffective regarding the search issue.3 He asks for a COA on both issues.

                                    A. COA and AEDPA

       We must grant a COA to review the district court’s denial of a § 2254 petition.

See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 

, 335-36 (2003). To

receive a COA, the petitioner must make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and must show “that reasonable jurists

could debate whether . . . 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) (quotations omitted).

       Under AEDPA, when a state court has adjudicated the merits of a claim, a federal

district court cannot grant habeas relief on that claim unless 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,” 28 U.S.C. § 2254(d)(1),



       3
        Mr. Miller also argues the district court erred in denying his request for an
evidentiary hearing on his ineffective assistance of counsel claim and separately asks
for a COA on that issue. Aplt. Br. at 20-22. We resolve the evidentiary hearing
claim below when we address the merits of his argument under the Fourth and Sixth
Amendments.
                                              6
or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” 

       When the district court has denied habeas relief because the petitioner failed to

overcome AEDPA, our COA decision requires us to determine whether reasonable jurists

could debate the court’s application of AEDPA to the state court’s decisions. 

.

                             B. Sufficiency of the Evidence

1. Legal Background

       Under the Due Process Clause of the Fourteenth Amendment, a defendant cannot

be convicted of a crime unless the state proves, beyond a reasonable doubt, every

essential element of the crime charged. See Jackson v. Virginia, 

, 316

(1979); In re Winship, 

, 364 (1970). On federal habeas review, a district

court must decide under AEDPA whether the state courts have reasonably determined

“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.” 

.

       To convict Mr. Miller of manufacturing methamphetamine, the State needed to

prove that he (1) knowing and intentionally, (2) manufactured, (3) a controlled dangerous

substance (methamphetamine). Vilandre v. State, 

, 895 n.1 (Okla. Crim.

App. 2005); see Okla. Stat. tit. 63, § 2-401(G); Okla. Unif. Crim. Jury Instr. No. 6-3.

Oklahoma law defines manufacturing as “the production, preparation, propagation,

compounding or processing of a controlled dangerous substance, either directly or

                                             7
indirectly by extraction from substances of natural or synthetic origin, or independently

by means of chemical synthesis or by a combination of extraction and chemical

synthesis.” Okla. Stat. tit. 63 § 2-101(22).

2. Analysis

       Mr. Miller argues the district court—and by inference the OCCA—“failed to come

to grips with the fact that one of the essential ingredients for the manufacture of

methamphetamine—fuel—was not found in Mr. Miller’s possession.” Aplt. Br. at 13.

He concedes the evidence at trial showed he possessed a soda bottle that was used to

manufacture methamphetamine, but he claims that evidence failed to prove he made the

illegal drug. He argues the jury’s conclusion to the contrary constituted an unsupported

“leap[] of logic.” Aplt. Br. at 14.

       The evidence at trial showed police found the “shake and bake” soda bottle in Mr.

Miller’s backpack along with his driver’s license and prescription pill bottles bearing his

name. The jury could reasonably conclude that the bottle belonged to Mr. Miller. See

. Detective Hicks explained that the bottle showed “tell-tale”

signs of being used to manufacture methamphetamine. See ROA, Vol. II at 165. And the

State’s chemist confirmed that the substance in the bottle tested positive for ephedrine—a

precursor substance used to make methamphetamine—and for methamphetamine itself.

       Viewing these facts in the light most favorable to the State, the district court held

that the OCCA reasonably concluded that a rational jury could find that Mr. Miller used

the bottle to knowingly manufacture methamphetamine. See Okla. Stat. tit. 63,

§ 2-401(G); see United States v. Poe, 

, 1126 n.16 (10th Cir. 2009) (“[T]he

                                               8
mere existence of an alternative explanation does not require the finding of reasonable

doubt.”).4 Based on our review of the record and the OCCA’s opinion, we conclude that

reasonable jurists could not debate the district court’s denial of habeas relief on this

ground. We deny a COA on the issue.

                           C. Ineffective Assistance of Counsel

       Mr. Miller argues that his trial and appellate counsel were constitutionally

ineffective regarding the evidence officers recovered from his backpack. We understand

the argument to be that (1) trial counsel should have challenged the search through a

motion to suppress, and (2) appellate counsel should have argued on appeal or in

post-conviction proceedings that trial counsel was ineffective for failure to move to

suppress.

       In denying habeas relief, the district court said that, because the searched property

had been abandoned, counsel provided effective assistance. We agree, but unlike the

district court, we discuss each argument separately.




       4
         The lack of fuel in Mr. Miller’s possession does not undermine the jury’s
verdict. As explained at trial, consumption of fuel triggers the chemical process that
produces methamphetamine. See ROA, Vol. III at 214. Once the fuel is exhausted,
the reaction stops and does not produce any additional methamphetamine.
       The absence of fuel on Mr. Miller’s person does not mean the manufacturing
process never happened. See United States v. Hill, 

, 1261 (10th Cir.
2015) (explaining that juries have wide latitude to make logical inferences). Instead,
Mr. Miller’s possession of a bottle that manufactured methamphetamine allows for
the reasonable inference that the chemical reaction had finished by the time the
officers encountered Mr. Miller.

                                              9
1. Trial counsel IAC

       The first argument about trial counsel is procedurally barred. As noted above, the

OCCA said Mr. Miller waived this claim because it could have been raised in his direct

appeal. See ROA, Vol. II at 93. A “procedural default prevents a federal court from

reviewing the merits of a claim—including constitutional claims—that a state court

declined to hear because the prisoner failed to abide by a state procedural rule.” Williams

v. Trammell, 

, 1212 (10th Cir. 2015).

       Mr. Miller has not challenged the OCCA’s waiver determination. He further has

not shown his procedural default rested on a basis other than “an independent and

adequate state procedural rule,” nor has he attempted to “demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 

, 750 (1991).

       Although the district court did not address Mr. Miller’s procedural default of the

trial counsel IAC issue before the OCCA, we may deny COA on a ground that is

supported by the record even if it was not relied on by the district court. See Davis v.

Roberts, 

, 834 (10th Cir. 2005). Based on the foregoing, we conclude that

reasonable jurists could not debate the district court’s denial of habeas relief on Mr.

Miller’s IAC claim about trial counsel.

2. Appellate counsel IAC

       As to the second argument about appellate counsel, the OCCA decided that issue

on the merits, so AEDPA review applies. Even though the trial counsel IAC issue is

                                             10
procedurally barred, we nonetheless must discuss trial counsel’s effectiveness to resolve

the appellate counsel issue. This is so because, if trial counsel was not ineffective,

appellate counsel could not have been ineffective in failing to make an argument about

trial counsel on appeal.

3. Legal Background

       a. Fourth Amendment and ineffective assistance of counsel

       The Supreme Court has held that defendants may not bring Fourth Amendment

challenges in habeas proceedings when they could have raised the same challenges in

pretrial proceedings. Stone v. Powell, 

, 469, 494 (1976). But a habeas

petitioner may allege counsel was ineffective for failure to move to suppress. In

Kimmelman v. Morrison, 

, 368, 383 (1986), the Supreme Court said that

although habeas petitioners may not raise Fourth Amendment arguments, they may allege

counsel’s ineffectiveness for failing to file a “timely motion to suppress evidence

allegedly obtained in violation of the Fourth Amendment.”

       b. The Sixth Amendment right to effective counsel

       To succeed on a claim for ineffective assistance of counsel, Strickland v.

Washington, 

(1984), requires a showing of (1) deficient performance

that (2) causes prejudice. 

The first step requires showing that defense

counsel “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed . . . by the Sixth Amendment.” 

assessment is

“highly deferential.” 

Counsel’s actions are presumed to constitute “sound

trial strategy.” 

(quotations omitted). At the second step, Strickland

                                             11
requires demonstration that counsel’s errors and omissions resulted in actual

prejudice, 

that is, “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.” 

       When coupled with AEDPA, the Strickland standard is doubly deferential. See

Knowles v. Mirzayance, 

, 123 (2009). The state court must defer to

counsel’s trial strategy, granting wide latitude to strategic decisions. See Ryder ex

rel. Ryder v. Warrior, 

, 744 (10th Cir. 2016). The federal habeas court

must defer to the state court’s evaluation of counsel’s performance under AEDPA.

See 

Fourth Amendment right to be free from unreasonable searches

       Under the Fourth Amendment, warrantless searches are “per se

unreasonable . . . subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 

, 357 (1967). The exceptions

relevant here are (1) abandonment and (2) search incident to arrest.

              i. Abandonment

       Individuals do not retain Fourth Amendment rights in property they abandon.

Abel v. United States, 

, 241 (1960). Voluntary relinquishment of

property control eliminates the owner’s reasonable expectation of privacy in the

property. See California v. Greenwood, 

, 40 (1988). For example, in

Greenwood, the Supreme Court held a defendant had no expectation of privacy in

                                            12
garbage placed in opaque plastic bags outside the curtilage of his home because it

was “readily accessible to animals, children, scavengers, snoops, and other members

of the public.” 

(footnotes omitted).

      During Prohibition, the Supreme Court held that bootleggers who had discarded

their jugs of moonshine whiskey in a field while running from law enforcement had

abandoned those jugs and could not succeed in challenging the government’s seizure of

the jugs. Hester v. United States, 

, 58 (1924). The Court later held a juvenile

defendant had abandoned a rock of crack-cocaine by throwing it aside while running

from the police. California v. Hodari D., 

, 624, 629 (1991).5

      Merely relinquishing physical control of an item is not the same as abandoning it.

For example, in Smith v. Ohio, 

, 543-44 (1990) (per curiam), the Court held

the defendant did not abandon his paper bag when he threw it on the hood of his car

before speaking with police. Likewise, “[a] passenger who lets a package drop to the



      5
        This circuit has interpreted the Supreme Court’s cases to hold that, when a
defendant discards an item on a third-party’s property while fleeing from the police
and does not claim ownership of the property, he has abandoned that property.
“[A]bandonment occurs if either (1) the owner subjectively intended to relinquish
ownership of the property or (2) the owner lacks an objectively reasonable
expectation of privacy in the property.” United States v. Easley, 

, 1083
(10th Cir. 2018), cert. denied, 

(2019); see United States v. Morgan,

, 1571 (10th Cir. 1991) (allowing warrantless search of bag that
defendant had discarded in neighbor’s yard when defendant did not claim ownership
of the bag); United States v. Jones, 

, 1170, 1172-73 (10th Cir. 1983)
(concluding defendant abandoned his satchel when he left it outside the building he
was hiding in and denied ownership of it); United States v. Juszczyk, 

,
1214-15 (10th Cir.), cert. denied, 

(2017) (concluding defendant
abandoned his bag when he placed it on third-party’s roof when he did not have
permission to access the roof).
                                           13
floor of the taxicab in which he is riding can hardly be said to have ‘abandoned’ it.” Rios

v. United States, 

, 262 n.6 (1960).

              ii. Search incident to arrest

       To protect officers and prevent the destruction of evidence, the Fourth

Amendment allows officers to search individuals without a warrant if that search is

incident to the defendant’s lawful arrest. See Arizona v. Gant, 

, 339 (2009).

A court does not need to inquire whether a search of the arrested person is necessary on a

case-by-case basis. United States v. Robinson, 

, 235 (1973). This exception

to the warrant requirement extends only to the “area within [the] immediate control” of

the arrestee, which means “the area from within he might gain possession of a weapon or

destructible evidence.” Chimel v. California, 

, 763 (1969) (quotations

omitted).

2. Analysis

       As noted above, because the OCCA resolved Mr. Miller’s Sixth Amendment

claim regarding his appellate counsel on the merits, its decision is entitled to AEDPA

deference. The OCCA held (1) that Mr. Miller abandoned his backpack when he left it in

front of Sergeant Kelly’s car and fled from the officers and (2) appellate counsel

therefore was not ineffective for failing to argue that trial counsel was ineffective for

failing to file a motion to suppress. The OCCA buttressed its analysis by pointing out

that if Mr. Miller, having managed to run only a few yards, did not abandon his

backpack, its proximity to him allowed for a search incident to arrest. The district court



                                              14
concluded the OCCA did not unreasonably apply clearly established Supreme Court

precedent. See 28 U.S.C. § 2254(d)(1); ROA Vol. II at 167.

       In addressing the COA question, we ask if reasonable jurists could debate

whether the district court correctly determined under AEDPA that the OCCA’s

decision was a reasonable application of Supreme Court law. See 

. Note that the OCCA’s decision was based on its determination that the search

of Mr. Miller’s backpack was valid under the abandonment or the search-incident-to-

arrest exceptions.

       In his brief to this court, Mr. Miller argues he “simply placed the backpack on the

ground” and did not discard it when he fled. Aplt. Br. at 18. The trial evidence showed

Mr. Miller removed his backpack and placed it on the ground while he was speaking with

the officers. When Officer Johnson instructed Mr. Miller to turn around to be

handcuffed, Mr. Miller started to run away. He left his backpack. Because he fled, this

situation is not the same as placing his backpack on the hood of a car to speak with

police, as the defendant did in 

. Nor is it the same as placing a

bag on the floor of taxi, as the defendant did in 

n.6.

       Even if there is room to debate the OCCA’s analysis of whether Mr. Miller did

enough to abandon the backpack or whether the backpack was close enough to him to be

searched incident to arrest, we have explained that, under AEDPA, the state court’s

“application of Supreme Court law may be incorrect without being unreasonable.”

Lockett v. Trammell, 

, 1231 (10th Cir. 2013); see Williams v. Taylor, 

, 410 (2000). Indeed, to qualify for relief, Mr. Miller must convince the district

                                             15
court that “there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme] Court’s precedents.” Harrington v. Richter, 

, 102 (2011). The district court properly determined that the OCCA did not

unreasonably apply the Supreme Court’s abandonment precedent to the circumstances of

this case.

       The district court held that the OCCA was not unreasonable under AEDPA.

Reasonable jurists may be able to debate the OCCA’s determination, but not the district

court’s.6

                                    III. CONCLUSION

       We deny a COA and dismiss this matter.


                                               Entered for the Court


                                               Scott M. Matheson, Jr.
                                               Circuit Judge




       6
         Mr. Miller also asserts the OCCA made an unreasonable determination of
fact in concluding that he abandoned his backpack and argues the district court
abused its discretion in denying his request for an evidentiary hearing. But he does
not contest that Mr. Miller fled from the officers when they tried to arrest him. Nor
does he identify any other factual issue that might bear on the abandonment question.
We therefore deny a COA on Mr. Miller’s request for an evidentiary hearing.
                                              16