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 Oklahom a state prisoner proceeding pro se, 1 seeks a certificate of appealability (COA ) to challenge the district c ourt’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* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 pr o 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 Ci r. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction st ops, 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 Court2 proceed in forma pauperis (I FP). We deny his requests for a COA and to proceed IFP and dismiss the appeal. I. BACKGROUND An Oklahoma jury convicted Mr. Crai ghead of Endeavoring to Manufacture Methamphetamine, After Former Conviction of Two or More Felonies. The trial court sentenced him to thirty years’ imprisonmen t 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 late r, the OCCA affirmed the state district court’s denial of post-conviction relief. On August 14, 2015, Mr. Craighead filed a § 2254 pe tition for a writ of habeas corpus in the United States District Cour t for the Western District of Oklahoma. Mr. Craighead raised sixteen separate ground s for habeas relief. The habeas petition was referred to a magistrate judge who issu ed 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 di strict 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 ma gistrate judge’s order. Mr. Craighead then requested we grant hi m a COA to appeal the district court’s judgment. On August 8, 2017, we issued an order sua spont e for Mr. Craighead to show cause in writing as to why, under the firm wa iver 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 re asons 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. Craigh ead failed to file written objections to the magistrate judge’s R&R. The Tenth Circuit a dheres to a firm waiver rule, which provides that “a party who fails to make a timely objec tion 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 inform ed of the time period for objecting and the consequences of failing to obj ect, or when (2) the interests of justice require review.” Id. (internal quotation marks omitted). Mr. Craighead’s argument that the firm waiv er rule does not apply to him is brief: The appellant was transferred to Mack Alford Correction Center June 2, 2017. The report and recomme ndation was filed on June 14, 2017. The Appellant did not know of anyon e 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 fami ly attorney. It was returned to her becau se 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 libr ary and the law cler k 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 re quests this court not hold him to the “firm waiver” rule. . . .4 It is unclear from Mr. Craighead’s Me morandum Brief whether his “lack of knowledge” pertained to the tim e period for objecting to th e R&R, or something else. However, review of the R&R reflects that th e 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 factua l 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 in terests of justice exceptio n 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 fo rce and plausibility of the explanation for his failu re to comply. Mr. Craighead’s efforts to comp ly with the deadline were minimal—he mere ly mailed his legal documents to his mother, hoping that5 she would find him counsel. While he waited fo r the return of his legal documents, the July 5 deadline expired. Mr. Craighead offe rs 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 f act, 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 de termined by an analysis similar to plain error review and “includes review of a litig ant’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, in tegrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). In Mr. Craighead’s case, the magistrate j udge and district cour t denied all sixteen claims in the habeas petition, five of whic h 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 Ac t (AEDPA) applies to a federal court’s review of habeas claims that were adjudicat ed 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 cont rary to, or involv ed an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the Unite d 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 (interna l quotation omitted). In fact, AEDPA requires as a “condition for obtaining hab eas 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 fa irminded 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 e rred 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 moti on to suppress certain evidence at trial. 2 However, Mr. Craighead’s use of the term “subject matter ju risdiction” is a misnomer. Rather than arguing lack of subject matter ju risdiction, Mr. Craighead actually argues that the trial court did not have th e 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 speci fic argument in his petition for habeas corpus with the federal district court.7 issue is one of state law, rather than federa l 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 Miscon duct—Burden of Proof Mr. Craighead argues that comments 3 made by the prosecutor during voir dire and closing arguments denied him of his constitu tional rights to a pres umption of innocence and the requirement that his guilt be pr oven 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 plai n 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 pr osecutor’s improper remarks infringe on a specific guarantee of the Bill of Rights, the c ourt can grant habeas re lief 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 be yond 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). M r. Craighead asserts that the prosecutor

3 Mr. Craighead does not identify on appe al 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 fa ilure to produce evidence of his innocence and differentiating between “beyond a reasonable doubt and beyond all doubt whatsoever.” The OCCA found that the pros ecutor’s comments did not shift the burden of proof or lessen Mr. Craighead’s presump tion of innocence. Eval uating 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 burde n 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 eviden ce at trial was insuffi cient to establish “dominion and control in order to convic t [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 whet her the record evidence coul d reasonably support a finding of guilt beyond a reasonable do ubt: “[T]he relevant question is whether, after viewing the evidence in the light most fa vorable 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 dr aw from the evidence presented at trial.” Coleman v. Johnson , 566 U.S. 650, 655 (2012). Simply put, jurors must “draw reasonable inferences from basic fact s 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 knowingly9 and intentionally endeavored to manufacture methamphetamine. As the magistrate judge noted, the OCCA did not list specific circumst antial evidence in its opinion. However, the evidence listed by the magi strate 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 Pr emised on Invalid Waiver of Miranda Rights and Admission of Unrecorded Custodial Interrogation 1. Invalid Waiver of Miranda Rights Mr. Craighead claims that his Fifth Am endment 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 te stified that he verbally advised Mr. Craighead of his Miranda rights, that Mr. Craighead ack nowledged he understood those rights, and that Mr. Craighead indicated he was willing to spea k with the officer. Furthermore, the trial court c onducted a hearing pursuant to Jackson v. Denno , 378 U.S. 368 (1964), 4 and held that Mr. Craighead’s statem ents were voluntary. Evaluating this claim under the totality of the circumstances, th e 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 confessi on 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. Crai ghead has failed to demonstrate that this was an unreasonable application of clearly esta blished 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 requiri ng custodial interrogations be recorded in order to be admissible. Theref ore, 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 prosecutor ial misconduct deprived him of a fundamentally fair trial and re sulted in the imposition of an excessive sentence. He cites four instances of prosecutorial misconduc t: (1) use of improper impeachment tactics during cross-examination; (2 ) improperly vouching for th e credibility of the State’s witnesses; (3) misstating facts not in eviden ce; and (4) improperly seeking to invoke sympathy and societal alarm fro m the jury. The OCCA reject ed Mr. Craighead’s claims of prosecutorial misconduct, and the district court determined th at the OCCA was not11 unreasonable in doing so. After reviewing the ma gistrate judge’s thoro ugh 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 app lication of clearly established federal law. Because we find no error, we do not addre ss 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 faile d to raise any meritorious gr ounds for appeal, we DENY his application to proceed in forma pauperis. Entered for the Court

Carolyn B. McHugh Circuit Judge