September 10, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF… v. Scott Crow

FILED
United States Court of Appeals
Tenth Circuit
September 10, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BRANDON CHRISTIAN,
Petitioner - Appellant,
v.
SCOTT CROW,
Respondent - Appellee.
No. 21-6057
(D.C. No. 5:20-CV-00240-J)
(W.D. Okla.)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
Petitioner, Brandon Christian, an Oklahoma state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) so he can appeal the district
court’s dismissal of the habeas corpus petition he filed pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a
final order disposing of a § 2254 petition unless the petitioner first obtains a
COA). Because Christian has not “made a substantial showing of the denial of a
constitutional right,” this court denies his request for a COA and dismisses this
appeal. Id. § 2253(c)(2).
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 1

-- 1 of 6 --

In 2015, Christian entered a plea of nolo contendere to a charge of second
degree murder. Both before and after sentencing, Christian moved to withdraw
his plea. Both motions were denied. Christian filed a direct appeal with the
Oklahoma Court of Criminal Appeals (“OCCA”) and, when that was denied, he
sought state post-conviction relief. All of Christian’s state-court attempts at
reversing his conviction were unsuccessful.
In March 2020, Christian filed the instant § 2254 habeas petition, raising
four issues: (1) his plea was not entered knowingly and voluntarily, (2) his trial
counsel was ineffective for permitting him to enter the plea despite his mental
health issues, (3) the trial court erred when it denied his motions to withdraw his
plea, (4) he was denied his right to a competency hearing. Christian’s petition
was referred to a United States magistrate judge who recommended that it be
denied. See 28 U.S.C. § 636(b)(1)(B). In a well-reasoned order, the district court
considered Christian’s written objections, but, after de novo review, adopted the
magistrate judge’s Report and Recommendation and denied relief.
Id. § 636(b)(1)(C).
Christian’s claim that his plea was not entered knowingly and voluntarily
had two components. As to Christian’s assertion the trial court failed to establish
a factual basis before accepting his plea of nolo contendre, the district court
concluded the claim failed to state a federal constitutional violation because
-2-
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 2

-- 2 of 6 --

Christian never asserted his factual innocence at the plea hearing. See North
Carolina v. Alford, 400 U.S. 25, 36-38 (1970). As to Christian’s assertion the
trial court failed to correctly inform him of the applicable sentencing range, the
district court applied the standards set out in the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) and concluded the Oklahoma courts’ adjudication
of the claim was not contrary to, nor an unreasonable application of clearly
established federal law. 28 U.S.C. § 2254(d). Applying the same AEDPA
standard, the district court also concluded Christian was not entitled to relief on
his claim the trial court violated his federal due process rights by denying the
motions he filed seeking to withdraw his plea. Christian’s habeas claim was
based on his assertion he was not competent to enter his plea. On this point, the
district court ruled that the OCCA’s adjudication of Christian’s allegation of
mental incompetency at the plea hearing was not contrary to, nor an unreasonable
application of clearly established federal law or based on an unreasonable factual
determination. Id.
As to Christian’s claim of ineffective assistance of trial counsel, the district
court concluded the claim was procedurally barred. Christian argued the
ineffective assistance claim was properly presented to the state court on direct
appeal. The district court ruled to the contrary, concluding the claim Christian
raised on direct appeal was that trial counsel was ineffective for failing to conduct
-3-
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 3

-- 3 of 6 --

an investigation into the status of his mental health. In his state post-conviction
application, Christian argued counsel knew of his mental health history and was
ineffective for failing to insist on a competency hearing. The OCCA refused to
consider the post-conviction claim, concluding it was either waived or further
consideration was barred under principles of res judicata. Because the claim was
procedurally defaulted in state court, the district court ruled it was procedurally
barred from federal habeas review. Thomas v. Gibson, 218 F.3d 1213, 1221 (10th
Cir. 2000). The district court further concluded Christian had not demonstrated
(1) cause and actual prejudice for the default or (2) that failure to consider the
claim would result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
As to Christian’s remaining claim—that the trial court violated his due
process rights by failing to hold a competency hearing—the district court
concluded the claim was unexhausted because it had not been presented to the
state court either on direct appeal or in state post-conviction proceedings. The
court further ruled this unexhausted claim would be procedurally barred by an
independent and adequate state rule if Christian now attempted to raise it in state
court. Thus, the claim was subject to an anticipatory procedural bar. See
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“Anticipatory
procedural bar occurs when the federal courts apply procedural bar to an
-4-
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 4

-- 4 of 6 --

unexhausted claim that would be procedurally barred under state law if the
petitioner returned to state court to exhaust it.” (quotation omitted)). After
concluding Christian failed to demonstrate cause for the default and actual
prejudice or that a fundamental miscarriage of justice would result if the claim
was not reviewed, the district court ruled the due process claim was procedurally
barred from federal habeas review and dismissed it. See Smith v. Workman, 550
F.3d 1258, 1274 (10th Cir. 2008) (“Claims that are defaulted in state court on
adequate and independent state procedural grounds will not be considered by a
habeas court, unless the petitioner can demonstrate cause and prejudice or a
fundamental miscarriage of justice.”).
The granting of a COA is a jurisdictional prerequisite to Christian’s appeal
from the denial of his § 2254 petition. Miller–El v. Cockrell, 537 U.S. 322, 336
(2003). Christian must make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating 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.” Miller–El, 537 U.S. at
336 (quotations omitted). In evaluating whether Christian has satisfied his
burden, this court undertakes “a preliminary, though not definitive, consideration
of the [legal] framework” applicable to each of his claims. Id. Christian need not
-5-
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 5

-- 5 of 6 --

demonstrate his appeal will succeed to be entitled to a COA, but he must “prove
something more than the absence of frivolity or the existence of mere good faith.”
Id.
Having reviewed Christian’s appellate filings, the district court’s Order, the
magistrate judge’s Report and Recommendation, and the entire record before this
court pursuant to the framework set out by the Supreme Court in Miller–El, we
conclude Christian is not entitled to a COA. Reasonable jurists could not debate
the correctness of the district court’s disposition of each of the four claims raised
in Christian’s § 2254 petition. Accordingly, this court denies Christian’s request
for a COA and dismisses this appeal. Christian also seeks permission to proceed
on appeal in forma pauperis (“IFP”). This court grants Christian’s request to
proceed on appeal IFP.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-6-
Appellate Case: 21-6057 Document: 010110574303 Date Filed: 09/10/2021 Page: 6

-- 6 of 6 --