UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

DARRIN LYNN PICKENS, Petitioner - Appellant, v. RANDALL WORKMAN
Respondent - Appellee, No. 09-5170 (N.D. Okla.) (D.C. No. 4:06-CV-0 0343-TCK-TLW )

ORDER DENYING CERTIFICA TE OF APPEALABILITY, DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING APPEAL

Before TACHA , BRISCOE , and O’BRIEN , Circuit Judges.
Darrin Lynn Pickens, an Oklahoma state prisoner appearing pro se, 1 seeks to appeal from the district court’s denial of his 28 U.S.C. § 2254 ha beas corpus petition, which claims constitutional irregularities in his conviction for th e 1990 murder of Tommy Lee Hayes. Exercising jurisdicti on pursuant to 28 U.S.C. §1291 and § 2253(c)(1), we DENY his request for a certif icate of appealability (“COA”), DENY his request to proceed in forma pauperis , and DISMISS this matter.

1 Because Pickens proceeds pro se, we construe his pleadings liberally. Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). FILED United States Court of Appeals Tenth Circuit April 15, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I. Pickens was twice convicted by a jury in Oklahoma state court of, among other things, first degree murder. And he was tw ice sentenced to death. In 1990, while robbing a convenience store in Creek County, Oklahoma, Pi ckens shot the store clerk Tommy Lee Hayes four times. See Pickens v. State , 885 P.2d 678 (Okla. Cr. App. 1994) ( Pickens I ), rev’d in part on other grounds , Parker v. State , 917 P.2d 980, 986, n. 4 (Okla. Cr. App. 1994). 2 and Pickens v. State , 19 P.3d 866 (Okla. Cr. App. 2001) ( Pickens
II

). He was first tried in October 1990, conv icted on three counts, including first degree murder, and sentenced to deat h. The Oklahoma Court of Criminal Appeals (OCCA) reversed his convictions and remanded for a new trial. Pickens , 885 P.2d at 684. In 1998, Pickens was retried on charges of First Degree Murder While in the Commission of Robbery with a Dangerous Weap on (Count 1) and Feloniously Carrying a Firearm (Count 2). He was convicted on bo th counts and again sentenced to death on Count 1 and to ten years imprisonment on Count 2. The OCCA affirmed his conviction and death sentence for first degree murder, bu t reversed the conviction for feloniously carrying a firearm. 3 Pickens II , 19 P.3d at 884. The OC CA denied Pickens’ first application for post-conviction relief. Pickens v. State , PCD 2000-285 (Okla. Cr. App. August 30, 2001) (not for publication). Pickens filed a second application fo r post-conviction relief and a motion for

2 In this case we address hi s murder conviction arising from Pickens II , his second trial. 3 The state trial court dismissed Count 2 on the State’s request on August 8, 2001.- 3 - evidentiary hearing arguing the Supreme Court decision in Atkins v. Virginia , 536 U.S. 304 (2002) (holding the execution of the me ntally retarded to be cruel and unusual punishment under the Eighth and Fourteen th Amendments) should be applied to his

sentence. Pickens v State , 74 P.3d 601, 603 (Okla. Cr. App. 2003) ( Pickens III ). The OCCA granted post-conviction relief on his re quest for a hearing and remanded the case to the district court for a jury determination as to whether he was mentally retarded. Id. at 604. The jury found Pickens was not menta lly retarded. Pickens filed a supplemental brief 4 with the OCCA raising four propositions of error. Pickens v. State , 126 P.3d 612, 614 n.6 (Okla. Cr. App. 2005) ( Pickens IV ). The OCCA reversed the jury’s verdict, vacated Pickens’ death sentence and modified his sentence to life imprisonment without the possibility of parole. 5 Id. at 621 Pickens, appearing pro se, filed a petition in federal district court pursuant to 28 U.S.C. § 2254, alleging four grounds for relief. Pickens v. Sirmons , 06-CV-343-TCKTLW, 2009 WL 3763723 (N.D . Okla. Nov. 9, 2009) ( Pickens V ). He claimed: 1) the warrant for his arrest was illegally obtained because the officer deliberately lied about a ballistic report to establish probable cause; 2) he was denied his Fifth Amendment right

4 Pursuant to Salazar v. State , 84 P.3d 764, 766-67 (Okla. Cr. App. 2004), in cases where the OCCA has remande d for a jury determination on the issue of mental retardation, the district court must file with the OCCA its findings of fact and conclusions of law, the jury’s determination, any senten cing disposition and the tr ial transcripts within thirty days of the jury’s verd ict. Both parties have twenty days from the date the trial court filed its findings of fact and conclusions of law or from the filing of the transcripts, whichever is later, in which to file a supplemental brief. 5 On April 6, 2006, the State of Oklahom a filed a petition for writ of certiorari in the United States Supreme Cour t challenging the grant of post-conviction relief. The petition was denied on October 2, 2006. Oklahoma v. Pickens , 549 U.S. 941 (2006).- 4 - to counsel when he was subject ed to custodial interrogation leading to his confession; 3) the trial court committed reversible erro r by allowing the pros ecution to introduce evidence of other crimes during the first stage of his trial; and 4) there was insufficient evidence to link him to the crime other than the false confession coerced by law enforcement officers. The State asserted the fe deral district court was precluded from considering Pickens’ Fourth Amendment ille gal warrant claim based on Stone v. Powell , 428 U.S. 465 (1976) (rejecting habeas relief for a Fourth amendment claim when it has been fully and fairly litigated in state court), and he was not entitled to relief on his remaining claims under 28 U.S.C. § 2254(d). After a t horough and thoughtful analysis of Pickens’ claims, the district court agreed with the Stat e and denied habeas relief on each claim. It later denied Pickens’ application for a COA. Under the Antiterrorism and Effective D eath Penalty Act (“AEDPA”), a COA is a jurisdictional prerequisite to our review of the dismissal of a § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006). We will issue a COA only if the pe titioner has made a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). In determining whether Pickens has made such a showing, “[w]e re view the district court’s factual findings for clear error and its legal conclusions de novo.” Clark , 468 F.3d at 714.
II. On direct appeal to the OC CA and again in his habeas petition, Pickens asserted his murder conviction flowed fr om an unconstitutional arrest. Specifically, he claims the- 5 - officer who prepared the affidavit suppor ting his arrest warrant provided false information to establish proba ble cause. Prior to trial, Pickens filed two motions to suppress, both of which were denied. Th e OCCA reviewed his suppression claim on direct appeal and rejected it for two reasons . First, Pickens failed to establish the officer’s statements were made in reckless di sregard of the truth or with an intent to mislead and, second, there was probable cause fo r the issuance of the warrant even in the absence of the allegedly false information. Pickens II , 19 P.3d at 873-74 (citing Franks v. Delaware , 438 U.S. 154, 158 (1978)). When a state prisoner has been provided an opportunity to fully and fairly litigate a Fourth Amendment claim in state court, fe deral habeas relief may not be granted on a claim that evidence obta ined in an unconstitutional search and seizure was introduced at trial. See Stone , 428 U.S. at 494. The district cour t considered Picken s’ opportunity to litigate his claim in detail. There is no ques tion it had been fully an d fairly litigated by the state court’s consideration of two motions to suppress as well as the OCCA’s review on direct appeal. Pickens merely quarrels w ith the result. The op portunity for full and fair litigation is not defeat ed merely because a particip ant might prefer a different outcome. The district cour t sufficiently and correctly addressed this claim. See Miranda v. Cooper , 967 F.2d 392, 400- 01 (10th Cir. 1992). Pickens next claimed his rights under the Fifth and Sixth Amendments were violated when the trial court admitted a c onfession obtained duri ng a pre-arraignment- 6 - interview conducted while he was incarcerated on another charge. 6 He asserted the officers were aware he was represented in the other case but, nevertheless, interviewed him without his lawyer being present. The OCCA rejected this claim under Edwards v. Arizona, 451 U.S. 477 (1981) and McNeil v. Wisconsin , 501 U.S. 171, 174-83 (1991) (the Sixth Amendment invocation of the right to counsel in one case does not invoke the Fifth Amendment right to counsel during custodial interrogation on other unrelated charges). Pickens II , 19 F.3d at 875. Afte r a thorough discussion of hi s claims under relevant Supreme Court precedent, the district cour t determined the OCCA’s decision was not contrary to or an unreasonable application of McNeil, Edwards, and Montejo v.
Louisiana , 129 S. Ct. 2079 (2009). It conclude d Pickens had not yet been arraigned on the Creek County charge s at the time of his interview and audio-taped confession and, therefore, his Sixth Amendment right to counsel had not yet attached. See Kirby v. Illinois , 406 U.S. 682, 689 (1972) (Sixth Amendment right to counsel does not attach until “the initiation of adversar y judicial criminal proceedi ngs”). Moreover, Pickens had signed a waiver of his Miranda rights prio r to being questioned on the Creek County

6 Pickens was charged with the robbery of another convenience store in Tulsa County, Oklahoma, and the murder of the store’s clerk. The robbery and murder occurred four days after the robbery resulting in Hayes’ death. He was convicted and sentenced to death for the murder and fifty years imprisonment for the robbery. See Pickens v. Oklahoma , 850 P.3d 328 (Okla. Crim. App. 1993). On federal habeas review, he was granted relief from this death sentence and the case was remanded to the district court with instructions to grant the writ, conditioned upon the stat e court’s conducting a new sentencing trial or commuting his sentence to life imprisonment or life imprisonment without parole. Pickens v. Gibson , 206 F.3d 988, 1003 (1 0th Cir. 2000). Pickens subsequently waived jury trial on resenten cing in exchange for a sentence of life imprisonment without parole. See Pickens IV , 126 P.3d at 614, n.3.- 7 - robbery. Pickens fails to make a cogent argument establishing that “reasonable jurists could debate whether . . . the pe tition should have been resolved [by the district court] in a different manner or that the issues presen ted were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). 7 Pickens’ third proposition asserted his du e process rights were violated when the jury was exposed to an unredacted transcript of his confession. Later pages of the transcript included references to his prior felony convictions -- ev idence inadmissible at trial. On direct appeal, the OCCA rejected th is claim because the jurors had the transcript for only a short time before the error was co rrected and there was no evidence suggesting the jurors had read ahead. 8 Pickens II , 19 P.3d at 877. The district court determined

7 In a recent case, Maryland v. Shatzer , the Court held “[t]he protections offered by Miranda [ v. Arizona , 384 U.S. 436 (1966)] which we ha ve deemed suffici ent to ensure that the police respect th e suspect’s desire to have an atto rney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custod y that is of sufficient duration to dissipate its coercive effects.” --- U.S. ---, 130 S. Ct. 1213, 1222 (2010). The Court held a break of two weeks was sufficient “to sh ake off any residual coercive effects of [the prisoner’s] prior custody.” Id. at 1223. This includes “the in terim period during which a suspect was not interrogated, but was [incarcerat ed] pursuant to a prior conviction.” Id. at 1224. The Court reasoned, “there is no reason to believe a suspec t will view confession as the only way to end his interrogation when, before the interrogation be gins, he is told that he can avoid it by simply requesting that he not be interrogated without counsel present - an option that worked before.” Id. at 1226 (quotations omitted). While we recognize Perkins was not serving a sentence base d on his conviction for the Tulsa County robbery/murder at the time he was questio ned about the Creek Co unty robbery/murder, we note he had been held in the general population for almost a month following his arrest and prior to his second interrogation. 8 Pickens’ confession was audio-taped. In statements made during the taped session, Pickens referenced ot her crimes for whic h charges were pending or of which he had been convicted. The OCCA described the p ublication of the transc ript to the jury as follows:- 8 - Pickens had presented no facts rebutting the OC CA’s conclusion and, in any event, he had not demonstrated how such exposure wo uld have rendered his trial fundamentally unfair. See Maes v. Thomas , 46 F.3d 979, 987 (1 0th Cir. 1995) (a federal habeas court will not question a state court’s evidentiary rulings unless they rendered the trial fundamentally unfair). Nothin g in Pickens’ request for a COA gives us reason to question the correctness of the district court’s conclusion. Finally, Pickens claimed there was insuffici ent evidence to su pport his conviction because his false confession was the only evid ence linking him to th e crime. The OCCA rejected this claim because Pickens’ confe ssion was admissible a nd was corroborated by other evidence presented at tria l. The district court concl uded the OCCA’s determination was not an unreasonable application of the facts or contrary to the standard in Jackson v. Virginia , 443 U.S. 307, 319 (1979) (h olding relevant inquiry in reviewing the sufficiency of the evidence is “whether, af ter viewing the evidence in th e light most favorable to the prosecution, any rational trier of fact coul d have found the [pe titioner guilty] beyond a reasonable doubt”). Again, Pickens fails to present facts rebutting the OCCA’s factual

Counsel stated on the record he preferred the jury not be provided with the transcription, but agreed to handle any incorrect statements during crossexamination. After the State had passed out transcriptions to the jurors and had begun to play the tape, defense co unsel objected on th e grounds that the statement contained evidence of other cr imes. The trial court collected the transcriptions from the juro rs, called the court in recess, and then allowed defense counsel to go through the transcription in its entirety and recommend what portions should be red acted. Thereafter, the redacted tape was played for the jury, and the ju ry followed along with the redacted transcription. Pickens II , 19 P.3d at 877.- 9 - determination and fails to prov ide cogent argument showing the denial of a constitutional right. On December 16, 2009, Pi ckens filed a motion in this Court to proceed in forma pauperis ( ifp ) on appeal. 9 In order to proceed ifp on appeal, Pickens must “show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Ci r. 1991) (emphasis added). Because Pickens has failed to make a non frivolous argument, we deny his request to proceed ifp . He is directed to remit the full amount of the filing fee within twenty days. See Kinnell v. Graves , 265 F.3d 1125, 1129 (10th Cir. 2001 ) (dismissal of an appeal does not relieve appellant of the obligation to pay the appellate filing fee in full).
We DENY Pickens’ request for a CO A and his motion to proceed ifp . His appeal is DISMISSED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge

9 He paid the district court filing fee a nd did not apply to the district court for leave to proceed ifp on appeal.