UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ _________________ RENESE BRAMLETT, Petitioner - Appellant,

v. SCOTT CROW, Respondent - Appellee. No. 22-5079 (D.C. No. 4:20-CV -00537-JFH-CDL) (N.D. Okla.)

______________________ _________________ ORDER

______________________ _________________ Before BACHARACH , BALDOCK , and McHUGH , Circuit Judges.

______________________ _________________ Mr. Renese Bramlett was convicted of first-degree murder. The prosecution didn’t seek the death penalty, so a life sentence was mandatory; but the jury could include th e possibility of parole or deny that possibility. The jury opted to de ny the possibility of parole. Mr. Bramlett unsuccessfully pursued state-court remedies (including a direct appeal and post-conviction appeal) and petitioned in federal district court for a writ of habeas corpus. In his federal habeas petition, he claimed in part that Oklahoma’s stat utory procedure had violated his right FILED United States Court of Appeals Tenth Circuit 

### March 13, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 12 to due process. 1 The district court rejected the habeas claim, and Mr. Bramlett wants to appeal. He not only renews his habeas clai m for denial of due process, but also asserts a new claim: ineffective assistance of couns el for failing to object to the prosecutor’s closing argument.
I. The state-law clai m doesn’t provide an arguable basis for habeas relief. Because Mr. Bramlett seeks to attack the “process issued by a State court,” he can ap peal only upon the issuance of a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We can is sue a certificate only if Mr. Bramlett made a “substantial showin g of the denial of a constitutional right.” 28 U.S.C. § 2253(c)( 2). To assess the strength of that showing, we consider whether reasonable jurists could “find the district court’s assessment of the cons titutional claims de batable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. Bramlett invokes the Fourteen th Amendment’ s due process clause based on the State’s opportunity to present evidence in aggravation

1 Mr. Bramlett also claimed misc onduct by the pr osecutor for appealing to sympat hy. The state appellate court rejected this claim under the plain-error standard, a nd the federal district c ourt held that the state appellate court’s decision was not cont rary to clearly established federal law or an unreasonable application of a clearly established right. Here Mr. Bramlett doesn’t renew hi s claim for prosecutorial misconduct. But he does allege ineffective assistan ce of his trial attorney fo r failing to object to the prosecutor’s remarks. Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 23 and the defendant’s inabilit y to present evid ence in mitigati on. Okla. Stat. tit. 21 § 701.10-1(A). We must consid er the debatabilit y of this claim based on the underlying statutory restrictions for habeas relief. See MillerEl v. Cockrell , 537 U.S. 322, 336 (2003) (stati ng that when deciding whether to grant a certific ate of appealability, th e Court “look[s] to the District Court’s application of [The Antiterrorism an d Effective Death Penalty Act] to petitioner’s constitutional claims.”). These statutory restrictions would prevent habeas reli ef in the absence of (1) a clearly established constitu tional right as dete rmined by the Supr eme Court or (2) an unreasonable determination of facts. 28 U. S.C. § 2254(d). The federal district court rejected Mr. Bramlett’s claim, reasoning that the Supreme Court has never rec ognized a constitu tional right to present mitigating evidence in non-ca pital cases. We agree with this reasoning to the extent th at it bears on part of Mr . Bramlett’s habeas claim. The Supreme Court has re jected Eighth Amendment claims involving the inability to present mitigating evidence in noncapital cases. See Harmelin v. Michigan , 501 U.S. 957, 994–95 (1991) (regarding an Eighth Amendment challenge to a sentence of life imprisonmen t based on the failure to consider mitigating factors); Gilmore v. Taylor , 508 U.S. 333, 349 (1993) (O’Connor, J., co ncurring) (“We have no t held that the Eighth Amendment’s requirement that the jury be allowed to consider and give effect to all relevant mi tigating evidence in capita l cases . . . applies to Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 34 noncapital cases.”). To date, the Supr eme Court has not addressed whether due process entitles noncapit al defendants to pres ent mitigatin g evidence. So no jurist could reas onably find a Supreme Court precedent that clearly establishes a right under the Due Process Clause to present mitigating evidence in noncapital cases. 2 But Mr. Bramlett’s claim goes beyond his inability to present mitigating evidence. He claims that Oklahoma law unfairly allows the State to present aggravating evidence while disallowing a comparable right for defendants to present mitigating evidence. The state statute exists as pa rt of Oklahoma’s procedure for bifurcating criminal cas es when the prosecutor seeks enhancement of a sentence based on prio r felony convictions. Mahdavi v. State , 478 P.3d 449, 462 (Okla. Crim. App. 2020) (Kuehn, V.P.J., concurring in the result). The state procedure author izes bifurcation of cr iminal cases when the prosecution has a ri ght to present evid ence of prior felony convictions. Okla. Stat. tit. 21 § 701.10-1(a). Through bifur cation, the procedure is designed to prevent prosecutors from using prior felony convictions during the guilt phase of a criminal trial.

2 We’ve held that the right to due proc ess does not en title defendants in noncapital cases to pres ent mitigating evidence. Scrivner v. Tansy , 68 F.3d 1234, 1240 (10th Cir. 1995). Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 45 To determine whether this procedure triggers a denial of due process, we consider whether the procedure “off ends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina v. California , 505 U.S. 437, 445 (1992) (quoting Patterson v. New York , 432 U.S. 197, 202 (1977)). We th us apply this standard to the state’ s procedure for bifurcat ion when pr ior felony convictions are inadmissible at th e guilt stage and admissible for sentencing. Under the state procedure, the pros ecution can present only evidence of prior felony c onvictions; the statute does not authorize prosecutors to present other forms of aggravating evidence. See Mahdavi , 478 P.3d at 462 (Kuehn, V.P.J., concurring in results) (s tating that the la w limits the State “to presenting a limite d category of evidence — prior convictions”). The United States Supreme Court has neve r considered whet her a bifurcated procedure like this one would offend a deep-rooted tradi tion or otherwise trample on a fundamenta l right. Given the absence of a Supreme Court precedent that clearly establishes this constitutional right , Mr. Bramlett’s proposed appellate argument isn’t reas onably debatable. So we deny a certificate of appealability on Mr. Bramlett’s argumen t involving his inability to presen t mitigating evidence when the State presents evidence of prior felony convictions. Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 56 II. Any jurist would regard the clai m of ineffective assistance as procedurally barred. Mr. Bramlett alleges ineffective assi stance of counsel for failure to object to the State’s cl osing argument. Ordinarily a habeas petitioner must exhaust state court remedies, and Mr. Br amlett hasn’t rais ed this claim in the state court of appeals. See 28 U.S.C. § 2254(b)(1)( A). So the claim is technically unexhausted. But exhaustion would be futile because Mr. Bramlett has already pursued state-court remedies involvin g both a direct ap peal and a postconviction appeal. And if Mr. Bramlett were to pr esent the claim now, it would be procedurally barred. See Cummings v. Sirmons , 506 F.3d 1211, 1223 (10th Cir. 2007). So th e claim is subject to an anticipatory procedural bar. See id. Given the anticipatory procedural ba r, we could consider the merits of the claim only if Mr. Bramlett satisfies the re quirements for one of two exceptions: (1) cause and prejudice or (2) a fund amental miscarriage of justice based on ac tual innocence. Coleman v. Thompson , 501 U.S. 722, 750 (1991). Mr. Bramle tt has not invoked ei ther exception. Given the anticipatory procedural bar, no reasonable jurist could credit the petitioner’s appeal point on the claim of ine ffective assistance.
*** Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 67 Because Mr. Bramlett’s habeas clai ms aren’t reasona bly debatable, we deny his request for a ce rtificate of appealabilit y. In the absence of a certificate, we dismiss the appeal. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 22-5079 Document: 010110825530 Date Filed: 03/13/2023 Page: 7