Bishop v. Franklin , 444 F. App'x 234 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 21, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RONALD KEITH BISHOP,
Petitioner-Appellant,
v. No. 10-6238
(D.C. No. 5:08-CV-01358-HE)
ERIC FRANKLIN, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.
Ronald Keith Bishop, an Oklahoma state prisoner proceeding pro se, seeks
a certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2254 petition for writ of habeas corpus. Bishop also requests
permission to proceed in forma pauperis (IFP) on appeal. Because we conclude
Bishop has failed to make “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss the
appeal.
Bishop was convicted by an Oklahoma state-court jury of robbery with a
dangerous weapon and aggravated attempt to elude a police officer, after two or
more previous convictions. Bishop was sentenced to consecutive imprisonment
terms of 55 years on the first count and 25 years on the second count. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed Bishop’s convictions on
direct appeal. His petition for state post-conviction relief was denied and
affirmed by the OCCA. He then brought a § 2254 petition in federal district
court, asserting seven grounds for relief. A magistrate judge issued a report and
recommendation (R&R) to deny habeas relief and Bishop filed objections to the
R&R. After reviewing the magistrate judge’s analysis, the district court declined
to address Bishop’s objections because they raised new issues Bishop failed to
present to the magistrate judge. The court therefore entered judgment denying his
petition for habeas relief. The district court also denied his request for a COA.
Finally, the court denied Bishop’s request to proceed IFP on appeal, concluding
he had not demonstrated the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues on appeal. Bishop now seeks a COA
from this court and leave to proceed IFP on appeal.
In order to obtain a COA, Bishop must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In deciding whether to
issue a COA, we limit our examination to “a threshold inquiry into the underlying
merit of [the petitioner’s] claims.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Our standard of review depends on whether the district court decided a
claim on the merits or dismissed a claim on procedural grounds. Slack v.
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McDaniel, 529 U.S. 473, 484-85 (2000). Where the district court rejects a
constitutional claim on the merits, the substantial showing of the denial of a
constitutional right required for issuance of a COA requires the petitioner to
“demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Id. at 484. Where the district
court denied habeas relief on procedural grounds, the petitioner must show that
jurists of reason would find it debatable whether 1) the district court’s procedural
ruling was correct; and 2) the petitioner states a valid claim for the denial of a
constitutional right. Id. at 484-85.
Because Bishop is proceeding pro se, we liberally construe his application
for a COA. See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). He
purports to raise two claims on appeal, but both appear to address the same issue.
Bishop argues that his trial counsel was constitutionally ineffective for failing to
object to the admission, without corroborating evidence, of a police officer’s
testimony that Bishop had confessed to the robbery. See Opper v. United States,
348 U.S. 84, 92-93 (1954) (setting forth “the extent of the corroboration of
admissions necessary as a matter of law for a judgment of conviction”). Bishop
argues the district court erred in refusing to consider this contention and deeming
it waived because he raised it for the first time in his objections to the magistrate
judge’s R&R. Bishop maintains that he included this claim in his application for
state post-conviction relief and that the magistrate judge acknowledged the
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argument and addressed it in the R&R. We have reviewed the record on appeal
and agree with the district court that Bishop raised his Opper argument for the
first time in his objections to the R&R. Bishop fails to show that jurists of reason
would find the district court’s procedural ruling debatable.
To the extent that Bishop’s application for a COA can be construed as
raising claims of error in the district court’s other determinations, we have
thoroughly reviewed the record, the magistrate judge’s R&R, and the district
court’s further analysis in its order denying Bishop’s petition for habeas relief,
and we agree with the district court’s adjudication of Bishop’s other claims. He
fails to demonstrate that reasonable jurists would find the district court’s
assessment of his claims debatable or wrong.
We DENY a COA and DISMISS this matter. We further DENY Bishop’s
application to proceed IFP on appeal.
Entered for the Court
John C. Porfilio
Senior Circuit Judge
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