UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

LONNIE WAYLON CRAIGHEAD, 

 Petitioner - Appellant, 

v. 

CARL BEAR, Warden, 

Respondent - Appellee. 

No. 17-6180 

(D.C. No. 5:15-CV-00882-R) 

(W.D. Okla.) 

ORDER DENYING 

CERTIFICATE OF APPEALABILITY*

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. 

Petitioner Lonnie Craighead, an Oklahoma state prisoner proceeding pro se,1

 seeks 

a certificate of appealability (COA) to challenge the district court’s denial of his 28 U.S.C 

§ 2254 petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c). He also requests to 

 *

This order is not binding precedent, except under the doctrines of law of the case, 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. 

1

 Because Mr. Craighead is proceeding pro se, we construe his filings liberally. 

See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 

F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments 

liberally; this rule of liberal construction stops, however, at the point at which we begin 

to serve as his advocate.”). 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 7, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

proceed in forma pauperis (IFP). We deny his requests for a COA and to proceed IFP and 

dismiss the appeal. 

I. BACKGROUND 

 An Oklahoma jury convicted Mr. Craighead of Endeavoring to Manufacture 

Methamphetamine, After Former Conviction of Two or More Felonies. The trial court 

sentenced him to thirty years’ imprisonment and imposed a $50,000 fine. On May 23, 

2014, the Oklahoma Criminal Court of Appeals (OCCA) affirmed Mr. Craighead’s 

conviction. Over one year later, the OCCA affirmed the state district court’s denial of 

post-conviction relief. 

On August 14, 2015, Mr. Craighead filed a § 2254 petition for a writ of habeas 

corpus in the United States District Court for the Western District of Oklahoma. 

Mr. Craighead raised sixteen separate grounds for habeas relief. The habeas petition was 

referred to a magistrate judge who issued a Report and Recommendation (R&R) on 

June 14, 2017, recommending the district court dismiss Mr. Craighead’s petition. Mr. 

Craighead did not object to the R&R. The district court adopted the R&R on July 11, 

2017, and denied the habeas petition and COA, noting that Mr. Craighead had failed to 

file an objection to the magistrate judge’s order. 

Mr. Craighead then requested we grant him a COA to appeal the district court’s 

judgment. On August 8, 2017, we issued an order sua sponte for Mr. Craighead to show 

cause in writing as to why, under the firm waiver rule, he had not waived his right to 

appellate review by failing to timely object to the R&R. In response, Mr. Craighead 

timely filed a Memorandum Brief. For the reasons set forth below, we find that Mr. 
3 

Craighead has failed to show sufficient cause for failing to object to the R&R and is 

therefore barred by the firm waiver rule. 

II. ANALYSIS 

At the outset, we observe that Mr. Craighead failed to file written objections to the 

magistrate judge’s R&R. The Tenth Circuit adheres to a firm waiver rule, which provides 

that “a party who fails to make a timely objection to the magistrate judge’s findings and 

recommendations waives appellate review of both factual and legal questions.” MoralesFernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). However, the firm waiver rule 

does not apply “when (1) a pro se litigant has not been informed of the time period for 

objecting and the consequences of failing to object, or when (2) the interests of justice 

require review.” Id. (internal quotation marks omitted). 

Mr. Craighead’s argument that the firm waiver rule does not apply to him is brief: 

The appellant was transferred to Mack Alford Correction Center 

June 2, 2017. The report and recommendation was filed on June 14, 2017. 

The Appellant did not know of anyone that could help him with his 

pleadings so he sent his legal work to his mother in hopes of retaining an 

attorney for his post-conviction/habeas corpus proceeding. The legal work 

was mailed to his mother around June 20th. 

The petitioner’s mother took the legal work to the family attorney. It 

was returned to her because the family attorney did not handle criminal 

appeals. 

The appellant did not receive the legal work back until August 5, 

2017. He then went to the law library and the law clerk advised him he 

should immediately file a Notice of Appeal from the district court’s order 

adopting the Report and Recommendation of the magistrate entered on June 

14, 2017. The order was filed on July 17, 2017. It is because of the 

appellant’s lack of knowledge that he requests this court not hold him to the 

“firm waiver” rule. . . . 
4 

It is unclear from Mr. Craighead’s Memorandum Brief whether his “lack of 

knowledge” pertained to the time period for objecting to the R&R, or something else. 

However, review of the R&R reflects that the magistrate judge informed Mr. Craighead 

of the period within which to file objections and notified him that failure to file an 

objection would waive his right to appellate review. The R&R specifically states that 

“[a]ny objection must be filed with the Clerk of the District Court by July 5, 2017 [and] 

[f]ailure to make [a] timely objection to this Report and Recommendation waives the 

right to appellate review of the factual and legal issues addressed herein.” 

When a magistrate judge informs a pro se litigant of both the time period for 

objecting and the consequences of failing to object, the pro se litigant cannot avail 

himself of the first exception to the waiver rule. See Duffield v. Jackson, 545 F.3d 1234, 

1237–38 (10th Cir. 2008). The R&R “stated in clear English . . . that [Mr. Craighead] had 

until [July 5, 2017] to object and that failure to do so would waive his right to appellate 

review of all factual and legal questions.” Id. at 1238 (internal quotation marks omitted). 

Thus, Mr. Craighead may not take advantage of the firm waiver rule’s first exception. 

To determine whether the interests of justice exception applies, this court has 

“considered factors such as a pro se litigant’s effort to comply, the force and plausibility 

of the explanation for his failure to comply, and the importance of the issues raised.” Id.

at 1238 (internal quotation marks omitted). 

We begin first with Mr. Craighead’s effort to comply and the force and plausibility 

of the explanation for his failure to comply. Mr. Craighead’s efforts to comply with the 

deadline were minimal—he merely mailed his legal documents to his mother, hoping that 
5 

she would find him counsel. While he waited for the return of his legal documents, the 

July 5 deadline expired. Mr. Craighead offers no explanation as to why it took him so 

long to receive his legal documents from his mother. Neither does he offer an explanation 

as to why he did not request an extension from the court. See id. (noting the plaintiff 

could have requested an extension). In fact, he waited until a month after the deadline 

passed before going to the law library to talk to the clerk. Mr. Craighead appears not to 

have made a diligent effort to comply with the deadline, nor has he satisfactorily 

explained his failure to comply. 

The “importance of the issues raised” is determined by an analysis similar to plain 

error review and “includes review of a litigant’s unobjected-to substantive claims on the 

merits.” Id. (internal quotation marks omitted). “To show plain error [Mr. Craighead] 

would have to show (1) error, (2) that is plain, which (3) affects substantial rights, and 

which (4) seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” Id. (internal quotation marks omitted). 

In Mr. Craighead’s case, the magistrate judge and district court denied all sixteen 

claims in the habeas petition, five of which Mr. Craighead challenges on appeal. Before 

deciding whether the district court’s decision was plainly erroneous, we first note that the 

Antiterrorism and Effective Death Penalty Act (AEDPA) applies to a federal court’s 

review of habeas claims that were adjudicated on the merits in state court proceedings. 

See Ellis v. Raemisch, 872 F.3d 1064, 1083 (10th Cir. 2017), petition for cert. filed, 

No. 17-6323 (Oct. 13, 2017). In that situation, the federal court may grant a habeas 

petition only if the state court’s adjudication of the claim: 
6 

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or (2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding. 

28 U.S.C. § 2254(d)(1)–(2). “AEDPA imposes a highly deferential standard for 

evaluating state-court rulings” and “demands that state-court decisions be given the 

benefit of the doubt.” Raemisch, 872 F.3d at 1083 (internal quotation omitted). In fact, 

AEDPA requires as a “condition for obtaining habeas corpus from a federal court, [that] a 

state prisoner . . . show that the state court’s ruling on the claim . . . was so lacking in 

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

beyond any possibility of fairminded disagreement.” Id. (citing Harrington v. Richter, 

562 U.S. 86, 103 (2011)). Through the lens of this deferential standard, we now decide 

whether the district court plainly erred in dismissing the habeas claims. 

A. Reconsideration of Motion to Suppress 

Mr. Craighead argues extensively that the trial court did not have subject matter 

jurisdiction to reconsider and deny a motion to suppress certain evidence at trial.2

However, Mr. Craighead’s use of the term “subject matter jurisdiction” is a misnomer. 

Rather than arguing lack of subject matter jurisdiction, Mr. Craighead actually argues that 

the trial court did not have the power to entertain a motion for reconsideration regarding 

its prior ruling on a motion to suppress under 22 Okla. St. Ann. §§ 1089.1–1089.3. This 

 2

 Mr. Craighead did not raise this specific argument in his petition for habeas 

corpus with the federal district court. 
7 

issue is one of state law, rather than federal law, and “it is not the province of a federal 

habeas court to reexamine state-court determinations on state-law questions.” Estelle v. 

McGuire, 502 U.S. 62, 67–68 (1999). The district court did not err in dismissing the 

claim. 

B. Prosecutorial Misconduct—Burden of Proof 

Mr. Craighead argues that comments3

 made by the prosecutor during voir dire and 

closing arguments denied him of his constitutional rights to a presumption of innocence 

and the requirement that his guilt be proven beyond a reasonable doubt. The OCCA 

found that “[n]one of the comments complained of were met with objection at trial and 

none of the comments rose to the level of plain error.” To merit habeas relief, a claim of 

prosecutorial misconduct alleging a violation of due process generally requires a showing 

that the entire proceeding was fundamentally unfair. See Donnelly v. DeChristoforo, 416 

U.S. 637, 642–45 (1974). However, where a prosecutor’s improper remarks infringe on a 

specific guarantee of the Bill of Rights, the court can grant habeas relief upon finding that 

the defendant was deprived of that right. Id. 

Every criminal defendant is entitled to a presumption of innocence and cannot be 

convicted “except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” Cupp v. Naughten, 414 U.S. 141, 147–48 

(1973) (internal quotation marks omitted). Mr. Craighead asserts that the prosecutor 

 3

 Mr. Craighead does not identify on appeal the prosecutorial comments that he 

alleges were improper. Construing his filings liberally, we analyze the statements 

identified by the magistrate judge. 
8 

infringed on this right by commenting on his failure to produce evidence of his innocence 

and differentiating between “beyond a reasonable doubt and beyond all doubt 

whatsoever.” The OCCA found that the prosecutor’s comments did not shift the burden 

of proof or lessen Mr. Craighead’s presumption of innocence. Evaluating the challenged 

comments in the context of the entire trial, see Greer v. Miller, 483 U.S. 756, 765 (1987), 

we agree with the district court’s finding that “the prosecutor’s remarks neither 

mischaracterized nor negated the State’s burden of proof.” Therefore, the district court 

did not err in finding that the OCCA’s dismissal of this claim was reasonable. 

C. Sufficiency of the Evidence 

Mr. Craighead next argues that the evidence at trial was insufficient to establish 

“dominion and control in order to convict [him] of endeavoring to manufacture 

methamphetamine.” 

In Jackson v. Virginia, 443 U.S. 307, 318–19 (1979), the Supreme Court set forth 

the standard to determine whether the record evidence could reasonably support a finding 

of guilt beyond a reasonable doubt: “[T]he relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” Thus, juries have “broad 

discretion in deciding what inferences to draw from the evidence presented at trial.” 

Coleman v. Johnson, 566 U.S. 650, 655 (2012). Simply put, jurors must “draw reasonable 

inferences from basic facts to ultimate facts.” Id. 

The OCCA applied Jackson and found that “strong circumstantial evidence 

presented at trial” allowed a rational trier of fact to find that Mr. Craighead knowingly 
9 

and intentionally endeavored to manufacture methamphetamine. As the magistrate judge 

noted, the OCCA did not list specific circumstantial evidence in its opinion. However, the 

evidence listed by the magistrate judge is sufficient to allow a trier of fact to find beyond 

a reasonable doubt the essential elements of the crime charged. Accordingly, the district 

court did not err in finding that the OCCA’s application of Supreme Court precedent was 

not unreasonable. 

D. Fifth Amendment Violation Premised on Invalid Waiver of Miranda Rights 

and Admission of Unrecorded Custodial Interrogation 

1. Invalid Waiver of Miranda Rights 

Mr. Craighead claims that his Fifth Amendment right against self-incrimination 

was violated because he did not voluntarily waive his Miranda rights. He asserts that, 

while it is undisputed he was advised of his right to remain silent, no evidence was 

produced as to whether he was advised of his other Miranda rights. This assertion is 

unsupported by the record. 

The officer who arrested Mr. Craighead testified that he verbally advised Mr. 

Craighead of his Miranda rights, that Mr. Craighead acknowledged he understood those 

rights, and that Mr. Craighead indicated he was willing to speak with the officer. 

Furthermore, the trial court conducted a hearing pursuant to Jackson v. Denno, 378 U.S. 

368 (1964),4

 and held that Mr. Craighead’s statements were voluntary. Evaluating this 

claim under the totality of the circumstances, the OCCA held the record was sufficient to 

 4 Jackson v. Denno, 378 U.S. 368, 376 (1964) (“A defendant objecting to the 

admission of a confession is entitled to a fair hearing in which both the underlying factual 

issues and the voluntariness of his confession are actually and reliably determined.”). 
10 

establish that Mr. Craighead had been properly advised of his Miranda rights and that his 

waiver was knowing and voluntary. Mr. Craighead has failed to demonstrate that this 

was an unreasonable application of clearly established federal law. The district court did 

not err in denying this claim. 

2. Admission of Unrecorded Custodial Interrogation 

Mr. Craighead further argues that the admission at trial of his “custodial 

interrogation” pursuant to his involuntary Miranda waiver was a violation of his due 

process rights. He seems to argue that the admission at trial of the officer’s testimony 

about the ensuing conversation was prejudicial because it was unrecorded and therefore 

unreliable. The OCCA rejected this claim. As the magistrate judge noted, Mr. Craighead 

cites no clearly established federal law requiring custodial interrogations be recorded in 

order to be admissible. Therefore, the district court did not err in finding the OCCA’s 

holding on this issue reasonable. 

E. Prosecutorial Misconduct—Right to a Fair Trial 

Mr. Craighead claims that prosecutorial misconduct deprived him of a 

fundamentally fair trial and resulted in the imposition of an excessive sentence. He cites 

four instances of prosecutorial misconduct: (1) use of improper impeachment tactics 

during cross-examination; (2) improperly vouching for the credibility of the State’s 

witnesses; (3) misstating facts not in evidence; and (4) improperly seeking to invoke 

sympathy and societal alarm from the jury. The OCCA rejected Mr. Craighead’s claims 

of prosecutorial misconduct, and the district court determined that the OCCA was not 
11 

unreasonable in doing so. After reviewing the magistrate judge’s thorough analysis in the 

R&R, we agree. The district court did not err in denying this claim. 

The district court did not err in finding that the OCCA’s decision on these issues 

was not contrary to or an unreasonable application of clearly established federal law. 

Because we find no error, we do not address the other prongs of plain-error review. 

Accordingly, Mr. Craighead’s appeal is barred by the firm waiver rule. 

III. CONCLUSION 

We DENY Mr. Craighead’s request for a COA and DISMISS this matter. In 

addition, because he has failed to raise any meritorious grounds for appeal, we DENY his 

application to proceed in forma pauperis. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge