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

                            FOR THE TENTH CIRCUIT                               May 13, 2020
                        _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 DARVIN WAYNE GRAY,

       Petitioner - Appellant,

 v.                                                           No. 20-7011
                                                 (D.C. No. 6:16-CV-00482-RAW-KEW)
 RICK WHITTEN, Warden,                                        (E.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.
                  _________________________________

       Darvin Wayne Gray, a state prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his application for

habeas relief under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we deny his request for a COA and dismiss this matter. 1




       *
         This order is not binding precedent except under the doctrines of law of the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.
       1
        Because Mr. Gray is pro se, we construe his filings liberally, but we do not act as
his advocate. Yang v. Archuleta, 

, 927 n.1 (10th Cir. 2008).
                                             1
                                   I. BACKGROUND

                                A. State Court Proceedings

       In 2013, a jury convicted Mr. Gray of rape by instrumentation, forced oral

sodomy, and lewd molestation of a minor. At trial, the prosecution showed that Mr.

Gray hired the victim to work at a theme park and molested her there. The evidence

consisted of (1) the victim’s testimony describing incidents of abuse; (2) a

coworker’s testimony that he encountered Mr. Gray and the victim, the victim

signaled him for help, and the victim, clearly traumatized, told him of the abuse; and

(3) text messages from Mr. Gray to the victim urging her not to tell the coworker

what had happened. The Oklahoma state court sentenced him to concurrent 50-year

prison terms and to life without parole.

       Mr. Gray appealed his convictions and sentence to the Oklahoma Court of

Criminal Appeals (“OCCA”). He raised four grounds for relief: (1) insufficient notice

in the charging document of the basis for each offense, (2) failure to grant a mistrial after

the prosecutor commented on his decision to not testify, (3) prosecutorial misconduct,

and (4) ineffective assistance of trial counsel. The OCCA rejected each ground and

affirmed Mr. Gray’s convictions and sentence. Gray v. State, No. F-2014-322 (Okla.

Crim. App. Aug. 7, 2015).

       In 2015, Mr. Gray sought post-conviction relief. He asserted (1) ineffective

assistance of trial counsel on grounds not raised on direct appeal, (2) ineffective

assistance of appellate counsel, and (3) insufficient evidence. The state trial court

denied the application without a hearing. It concluded his claims for ineffective

                                              2
assistance of trial counsel and insufficient evidence could have been raised and were

not on direct appeal, and thus were waived. It rejected his claim for ineffective

assistance of appellate counsel on the merits. The OCCA affirmed on appeal.

                         B. Federal District Court Proceedings

      Mr. Gray filed this action challenging his conviction under 28 U.S.C. § 2254.

We quote the district court’s description of his claims:

      I.     Error occurred when no election was made with regard to the
             specific act relied on as the basis for each offense and the trial
             court failed to properly instruct the jury.

      II.    The state [trial] court abused its discretion when it failed to
             grant the motion for mistrial made after the state improperly
             commented on Petitioner’s failure to testify.

      III.   Prosecutorial misconduct deprived Petitioner of a fair trial.

      IV.    Ineffective assistance of trial counsel denied Petitioner due
             process and his right to a fundamentally fair trial.

      V.     Petitioner was denied the effective assistance of counsel at
             trial, for reasons not raised in his direct appeal.

      VI.    Petitioner was denied the effective assistance of appellate
             counsel, in violation of the Sixth Amendment.

      VII.   The State’s evidence was insufficient to prove Petitioner’s
             guilt beyond a reasonable doubt.

Gray v. Whitten, 

, at *1 (E.D. Okla. Feb. 21, 2020) (unpublished).

Claims I through IV mirror the four claims Mr. Gray raised on direct appeal. Claims

V through VII match the three claims in his application for post-conviction relief.

      After briefing by the parties, the district court issued a detailed order denying

relief. It concluded Claims V and VII were procedurally barred for failure to raise

                                             3
them on direct appeal.

17-18. It rejected his remaining claims under the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d),

and denied a COA,

                                   II. DISCUSSION

       Mr. Gray requests a COA to appeal the district court’s rulings on Claims II

(refusal to grant a mistrial), III (prosecutorial misconduct), IV and V (ineffective

assistance of trial counsel), and VII (insufficient evidence). See Aplt. Br. at 3-6,

8-10. In his brief to this court, he identifies the foregoing as Issues A, E, F, B, and C,

respectively. He also asserts violation of his due process rights based on insufficient

notice of certain post-conviction state court filings and hearings.

(identified

as Issue D). 2

                            A. COA and AEDPA Standards

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

application. See 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the applicant must

make “a substantial showing of the denial of a constitutional right,”

and 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).




       2
        Because Mr. Gray does not challenge the district court’s ruling as to Claims I and
VI, we regard those claims as abandoned or waived.
                                            4
       Where, as here, the district court dismissed certain claims on procedural

grounds, we will grant a COA as to those claims only if the applicant can

demonstrate both “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.”

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), 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.

See Miller-El v. Cockrell, 

, 336 (2003).

                                        B. Analysis

       Mr. Gray is not entitled to a COA because reasonable jurists would not debate

whether the district court correctly decided the issues he seeks to appeal.

   Refusal to Grant Mistrial (Claim II/Issue A)

       Mr. Gray claims the state trial court violated his rights under the Fifth, Sixth, and

Fourteenth Amendments when it refused to grant a mistrial after the prosecutor

                                              5
commented during closing argument on his failure to testify. The OCCA quoted the

prosecutor’s comment as follows:

              Then ask yourself, What reason does the defendant have to
              lie? I mean, you didn’t hear from him and he has the
              constitutional right not to testify, which you should honor
              that. If I was charged with a crime, I probably wouldn’t
              testify either because that’s my constitutional right.

Gray, No. F-2014-322, slip. op. at 13.

       The OCCA agreed the prosecutor’s comment was “improper” but concluded

“the jury instructions coupled with the prosecutor’s subsequent statements cured the

error.”

held that even if the error was not cured, the comment was

“harmless beyond a reasonable doubt” because “[t]he great weight of the evidence

strongly supported the jury’s determination of guilt.”

(noting that the

OCCA “has long recognized that a prosecutor’s improper comment upon a

defendant’s failure to testify is subject to harmless error review”). It thus concluded

the state trial court did not abuse its discretion when it denied the motion for a

mistrial.

       The district court denied habeas relief. It noted that under Oklahoma law, “the

decision to grant a mistrial at defense request is left to the sound discretion of the

trial court.” Knighton v. State, 

, 894 (Okla. Crim. App.) (citations

omitted), cert. denied, 

(1996). To warrant federal habeas review of a

state court trial error, Mr. Gray had to show it “was so grossly prejudicial that it

fatally infected the trial and denied the fundamental fairness that is the essence of due



                                            6
process.” Hooks v. Workman, 

, 1180 (10th Cir. 2012) (quotations

omitted). Because he had not met this burden, the district court rejected the claim.

      We agree that Mr. Gray has not shown the state court’s refusal to grant a

mistrial was so fundamentally unfair that he was denied due process. See Humes v.

Arellano, 413 F. App’x 68, 70 (10th Cir. 2011) (unpublished) (denying federal

habeas review where petitioner failed to show prejudice, “let alone a denial of due

process,” from denial of mistrial). 3 Nor has he shown the OCCA’s analysis of the

prosecutor’s comment was contrary to or an unreasonable application of clearly

established Supreme Court law 4 or based on an unreasonable determination of facts.

See 28 U.S.C. § 2254(d). Reasonable jurists would not debate these determinations.

A COA is not warranted.

   Prosecutorial Misconduct (Claim III/Issue E)

      Mr. Gray argues the prosecutor improperly invoked sympathy for the victim by

commenting on the effect of Mr. Gray’s sexual assaults. 5 In his opening statement, the


      3
         Although not precedential, we find the reasoning of the unpublished opinions
cited in this order and judgment instructive. See 10th Cir. R. 32.1 (“Unpublished
decisions are not precedential, but may be cited for their persuasive value.”); see
also Fed. R. App. P. 32.1.
      4
         See Chapman v. California, 

, 22 (1967) (stating that a prosecutor’s
improper comment on a defendant’s failure to testify may “be deemed harmless”); United
States v. Hasting, 

, 509 (1983) (concluding federal court of appeals erred in
failing to apply harmless error analysis to prosecutor’s improper comment on defendants’
decision to not testify).
      5
         Mr. Gray’s brief also contends the prosecutor failed to call witnesses that would
have exonerated him. Because Mr. Gray did not raise this argument in his § 2254 habeas
application, we “will not consider it on appeal.” Hammon v. Ward, 

, 926
                                            7
prosecutor asserted Mr. Gray “prayed [sic] . . . on this 15-year-old [victim] because he

thought he could control her with his paycheck and keep her quiet.” Gray, 

, at *9 (citation omitted). In his closing argument, the prosecutor described the

victim’s “invasive” rape exam and the difficulty of testifying about her assaults.

Mr. Gray did not object to these comments at trial. 6

       On direct appeal, the OCCA concluded Mr. Gray had “waived appellate review

of [his prosecutorial misconduct] claim for all but plain error” because he had “failed

to raise a timely objection to any of the instances [of misconduct]” in the trial court.

Gray, No. F-2014-322, slip. op. at 15. It concluded the prosecutor’s statements

regarding the victim were not error, let alone plain error.

“The

prosecutor did not overtly seek sympathy for the victim but merely discussed the

evidence in the case.”

       “In a habeas corpus action, claims of prosecutorial misconduct are reviewed

only for a violation of due process.” Malicoat v. Mullin, 

, 1255 (10th

Cir. 2005), cert. denied, 

(2006); see Darden v. Wainwright, 

, 181 (1986). To warrant habeas relief, Mr. Gray “must establish that the


n.8 (10th Cir. 2006) (declining to address a claim petitioner did not raise in his habeas
petition before the district court); see McLuckie v. Abbott, 

, 1200 n.3 (10th
Cir. 2003) (same).
       6
         In his prosecutorial misconduct claim on direct appeal and in the district court,
Mr. Gray also argued the prosecutor improperly attacked his credibility. See Gray, 

, at *9-11. Because he does not assert this argument in support of his
prosecutorial misconduct claim on appeal, we do not consider it here. To the extent Mr.
Gray bases his prosecutorial misconduct claim on the prosecutor’s comment on his
failure to testify, it fails for the reasons already stated above.
                                             8
prosecutor’s conduct or remarks ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” 

(quoting

Donnelly v. DeChristoforo, 

, 642 (1974)). Under AEDPA, he also must

show the state court’s rejection of his prosecutorial misconduct claim “was so lacking

in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fair minded disagreement.” Parker v. Matthews, 

, 47 (2012) (quotations omitted).

      The district court concluded “the OCCA’s determination of this claim was not

contrary to, or an unreasonable application of, Supreme Court law,” or “based on an

unreasonable determination of the facts in light of the evidence presented.” Gray,

, at *11. We agree. Even if Mr. Gray could overcome AEDPA, the

claim lacks merit. A COA is not warranted.

   Ineffective Assistance of Trial Counsel (Claims IV and V/Issues F and B)

      Mr. Gray raised two claims of ineffective assistance of trial counsel in the

district court. One claim was based on arguments he raised on direct appeal. The

other was based on arguments he asserted for the first time in his application for

post-conviction relief. He challenges the district court’s ruling as to both claims.

      a. Legal background

             i. Ineffective assistance of counsel

      The Supreme Court established the standard for ineffective assistance of

counsel in Strickland v. Washington, 

(1984). Strickland requires a

showing of (1) deficient performance that (2) causes prejudice.

The first

                                           9
step requires demonstrating “that [defense] counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.”

step requires showing “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”

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

Cullen v. Pinholster, 

, 190 (2011) (quotations omitted). “The question

‘is not whether a federal court believes the state court’s determination’ under

Strickland ‘was incorrect but whether [it] was unreasonable—a substantially higher

threshold.’” Knowles v. Mirzayance, 

, 123 (2009) (quoting Schriro v.

Landrigan, 

, 473 (2007)).

             ii. State procedural bar

      Federal habeas petitioners may not obtain review of claims “that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” English v. Cody, 

, 1259 (10th Cir. 1998)

(citing Coleman v. Thompson, 

, 749-50 (1991)); see Walker v. Martin,

, 315-16 (2011). “To qualify as an adequate procedural ground, a state

rule must be firmly established and regularly followed.” 

(quotations omitted).

      Under 22 Okla. Stat. Ann. § 1086, an argument not raised “in any . . .

proceeding the applicant has taken to secure relief may not be the basis for a

                                          10
subsequent application, unless the court finds . . . sufficient reason [for why it] was

not asserted.” We have recognized that Oklahoma courts consistently apply § 1086’s

procedural bar to claims that could have been raised on direct appeal but were not.

See Smith v. Workman, 

, 1266-67 (10th Cir. 2008) (concluding claim

was “procedurally barred given that the OCCA deemed the claims waived” under

§ 1086); Ellis v. Hargett, 

, 1186 (10th Cir. 2002) (stating that § 1086

“is an independent and adequate state ground for denying habeas relief”).

       b. Analysis of claims

              i. Arguments raised on direct appeal

       On direct appeal, Mr. Gray argued he received ineffective assistance when his

trial counsel failed to (1) request that the state court require the prosecutor to specify

the acts of rape, sodomy, and molestation underlying each count, (2) object earlier to

the prosecutor’s comment on his failure to testify, and (3) object to other instances of

prosecutorial misconduct, including the prosecutor’s attempts to elicit sympathy for

the victim. The OCCA rejected each argument for failure to show prejudice under

the second prong of Strickland. Gray, No. F-2014-322, slip. op. at 17-18.

       The district court, citing the OCCA’s analysis, agreed Mr. Gray had not shown a

reasonable probability that trial counsel’s allegedly deficient performance would have

changed the outcome of his trial. Gray, 

, at *13-14. It also concluded

“the OCCA’s determination of this claim was in accordance with Supreme Court

law” and “was not based on an unreasonable determination of the facts.”

                                            11
       Mr. Gray offers no basis to challenge the decisions of the OCCA or district

court. He does not contest the prejudice analysis under Strickland; argue that the

OCCA’s decision was contrary to, or based on an unreasonable application of,

Supreme Court law or based on an unreasonable determination of the facts, see 28

U.S.C. § 2254(d); or explain why the district court “should have . . . resolved [the

claim] in a different manner,” 

. He is not entitled to a COA.

              ii. Arguments raised in application for post-conviction relief

       The state trial court, OCCA, and district court determined that 22 Okla. Stat.

Ann. § 1086 barred Mr. Gray’s later-raised arguments for ineffective assistance of

counsel because he could have brought them on direct appeal but did not. The

district court concluded Mr. Gray had “not presented any evidence of cause and

prejudice” or made “a colorable claim” for a fundamental miscarriage of justice, as

necessary “to overcome [§ 1086’s] bar.” Gray, 

, at *14-15.

       We have reviewed Mr. Gray’s brief in district court and agree. 7 Reasonable

jurists would not debate the correctness of the district court’s decision. 

. We therefore deny a COA.




       7
          The Supreme Court has held that “a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that proceeding
was ineffective.” Martinez v. Ryan, 

, 17 (2012); see Trevino v. Thaler, 

, 422 (2013). Mr. Gray has made no such argument here. Although he argued in
the district court that he received ineffective assistance of appellate counsel, he has
abandoned that claim on appeal.
                                            12
   Insufficient Evidence (Claim VII/Issue C)

       Mr. Gray asserts violation of his due process rights because the evidence at

trial was insufficient to convict him. He raised this argument for the first time in his

application for post-conviction relief. The state trial court held it was barred under

22 Okla. Stat. Ann. § 1086 for failure to raise it on direct appeal, and the OCCA

agreed. The district court concluded that Mr. Gray had failed to overcome the

procedural bar with evidence of prejudice or a fundamental miscarriage of justice.

Gray, 

, at *18.

       Reasonable jurists would not debate the district court’s ruling. Mr. Gray

claims on appeal that “there was no physical evidence of any type of rape” and that

the “[coworker’s] testimony was all hearsay.” Aplt. Br. at 6. But these points go to

the merits of his insufficient evidence claim, “not . . . the district court’s procedural

bar ruling.” James v. Martin, 567 F. App’x 594, 599 (10th Cir. 2014) (unpublished).

Because Mr. Gray has not argued prejudice or a fundamental miscarriage of justice

from application of the procedural bar, he is not entitled to a COA. 8




       8
          In Issue D of his brief, Mr. Gray argues the state trial court violated his “post-
conviction due process and constitutional rights” by failing to provide notice of certain
court filings and hearings. Aplt. Br. at 7. Because Mr. Gray did not raise this argument
in his § 2254 habeas application, we will not review it here. See 

n.8; 

n.3.
                                             13
                                III. CONCLUSION

      Mr. Gray has failed to show that reasonable jurists would find the district

court’s thorough assessment of his § 2254 application was debatable or wrong. We

therefore deny a COA and dismiss this matter.




                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




                                         14