UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

GARRY RANDALL WEST, Petitioner - Appellant,

v. JASON BRYANT, Respondent - Appellee. No. 18-6059 (D.C. No. 5:16- CV-00931-C) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , HARTZ , and McHUGH , Circuit Judges.

Petitioner Garry Randall West, an O klahoma state prisoner proce eding pro se, 1 seeks a certificate of appealab ility (“COA”) to challenge the d istrict court’s dismissal of his habeas petition brought und er 28 U.S.C. § 2254. The dist rict court dismissed Mr. West’s petition on the merits and declined to grant him a C OA. We deny Mr. West’s COA request a nd dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however , for its persuasive value consistent with Federal Rule of A ppellate Procedure 32.1 and Te nth Circuit Rule 32.1.

1 Because Mr. West is proceeding pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 13 15 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### February 7, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND

A. Factual History In late 2011, a Stillwater, Oklahom a, police investigator searc hed an online filesharing site looking for inter net protocol (“IP”) addresses in the local area that might be involved in downloading child pornography. The investigator connected a video depicting sexually explicit conduc t between a preadolescent mal e and an adult male with an IP address associat ed with Mr. West’s residence in Perkins, Oklahoma. 2 Because Perkins was outside of the inves tigator’s jurisdiction, the inv estigator passed along the information and assisted in writing a search warrant affidavit for Mr. West’s residence. In January 2012, the investigator j oined the Perkins police depart ment to execute the search warrant at Mr. West’s residence, where the police found several disassembled computers and one laptop that appeared opera ble. Finding evidence that an additional computer had been removed from the home, the o fficers decided to meet with M r. West at his workplace. Four police officers—two uniformed, two plainclothes—arrived at Mr. West’s workplace in three marked police vehicles. The two plainclothes officers entered the building and the business’s co-o wner, Paula Fitch, directed the m to Mr. West. The officers told Mr. West they were not going to arrest him at tha t time but were only gathering information and l ooking for another computer.

2 While the investigator was unabl e to download the video direct ly from Mr. West’s IP address, he was ab le to download the file from an other user. The investigator then matched the do wnloaded video w ith an identica l file Mr. West was sharing.3 The officers then asked Mr. West for identification, which Mr. West said was in his truck in the parking lot. M r. West and the two officers wen t to his truck, Mr. West handed them his identification , and the officers returned it af ter copying the information from his license. One of the office rs then returned to the buil ding and explained to Ms. Fitch that the police were l ooking for a computer belonging to Mr. West that may contain child pornography. Ms. F itch told the officer Mr. West often brought a red laptop to the office. When the officer re quested Ms. Fitch’s consent t o search the building, she expressed concern about the di sruption a search would cause. The officer exited the building and returned to Mr. West, reite rating that Mr. West was not under arrest but also stat ing that it was “time to be h onest” and tell the officers where the red laptop was. Preli minary Hearing Tr. (July 31, 201 2) at 22–23. Mr. West asked whether the officers had a search warrant; they admitted they did not. After thinking for a few minutes, Mr. W est told the officers his red laptop was in the business’s server room. At no point did the officers advise Mr. West of hi s Miranda rights. 3 Mr. West alleged that during this questioning, he was enclosed in a circle of officers, his own vehicle, and pa trol cars, making him feel lik e he could not leave. Ms. Fitch corroborated these factual circumstances. The officer returned to Ms. Fitch and told her the red laptop w as in the server room. She led the officer into th e server room, where the offic er saw a black bag with

3 See Miranda v. Arizona , 384 U.S. 436 (1966).4 Mr. West’s red laptop sticking out. 4 The officer seized the red la ptop and an external hard drive (which was also in the b ag), along with M r. West’s smartp hone from his office. The officer then told Mr. West he was free to leave. The police subsequently obtaine d a warrant to search the conten ts of the red laptop and the external hard drive, andan investigator identified ove r three hundred images and videos of child pornography on th e external hard drive. The pol ice also found child pornography on a separate lapt op seized from Mr. West’s home as well as on various floppy disks and hard d rives from his home.
B. Procedural History
1. Mr. West’s Trial and Sentencing Oklahoma indicted Mr. West on one count of aggravated possessio n of child pornography (“Count One”), Okla . Stat. tit. 21, § 1040.12(A), a nd one count of unlawful access to a computer to violate Ok lahoma statutes, Okla. Stat. tit. 21, § 1958 (“Count Two”). Mr. West moved to suppress the evidence from his red lap top and the external hard drive as fruits of a warran tless search, arguing his state ment about the location of the red laptop should be suppressed along with all evidence obtaine d from the red laptop and external hard drive. Mr. West al so argued that prosecution unde r both counts of the indictment constituted double jeo pardy. The trial court denied his motions.

4 Although worried about the poten tial disruption of her busines s if the police searched the entire building, Ms . Fitch testified she “wasn’t f orced to do anything.” Preliminary Hearing Tr. (July 31, 2012) at 80.5 After the preliminary hearing, M r. West renewed his suppressionmotion, which the district court again denied. Mr. West proceeded to a bench trial on July 29, 2013. The court found Mr. West guilty on bo th counts and imposed concurre nt sentences of twenty-three years’ imprisonmen t for Count One and five years’ imprisonment for Count
Two.
2. Mr. West’s Direct Appeal Mr. West appealed to the Oklahoma Court of Criminal Appeals (“O CCA”), again arguing for suppression of the evi dence from his red laptop and hard drive. In addition, he argued the two convictions v iolated state law prohibitions o n double punishment and the conviction was not for a cri me that required him to serve e ighty-five percent of his sentence (“eighty-five percent crime”). 5 The OCCA affirmed Mr. West’s convictions in an unpublished opinion.
3. Mr. West’s State Post-Con viction Proceedings Mr. West then filed an application for post-conviction relief in the state trial court, raising thirteen propositions of error. 6 The trial court denied relief, rejecting his ineffective assistance of counsel claims on the merits because Mr. West failed to show

5 Under Oklahoma law, a defenda nt convicted of certain designate d crimes must serve at least eighty-five percen t of the imposed sentence befo re he can be eligible for parole or a sentence reduction ba sed on earned credits. Okla. S tat. tit. 21, § 13.1.

6 These claims can be summarized a s ineffective assistance of tr ial and appellate counsel, a defective search wa rrant, lack of justification for a warrantless search, violation of state prohibiti ons on double punishment, Miranda violations, fabrication of evidence, the need for a defense expert, and that his convictio ns were not eighty-five percent crimes.6 prejudice, and dismissing his othe r claims as procedurally barr ed. Mr. West appealed the denial of his post-conviction app lication, but the OCCA affirme d.
4. Mr. West’s § 2254 proceedings Next, Mr. West filed a motion u nder § 2254 for habeas relief in the Western District of Oklahoma, raisi ng eight separate claims. 7 A magistrate judge recommended denying Mr. West’s petition. West v. Bryant , No. CIV-16-931-C, 2018 WL 1442976 (W.D. Okla. Feb. 28, 2018), report and recommendation adopted , No. CIV-16-931-C, 2018 WL 1440984 (W.D. O kla. Mar. 22, 2018). The magistrate judg e determined “the majority of [Mr. West]’s federal cl aims were either unexhausted and/or procedurally barred.” Id. at *3. However, “in the interes t of efficiency,” the magistrat e judge addressed each of the claims on the merits. Id. The district court adopted the report and recommendation in its entirety over Mr. West’s objection and de nied Mr. West § 2254 relief. West , 2018 WL 1440984, at *1. But the d istrict court did not addres s whether to grant Mr. West a COA. Id. Mr. West timely appealed and, a fter a limited remand, the district court also denied Mr. W est’s request for a COA. On May 11, 2018, Mr. West filed an application for a COA with this court.

7 Mr. West’s claimed grounds fo r relief were (1) ineffective ass istance of appellate counsel; (2) ineffective assist ance of trial counsel; (3) the e vidence seized at his workplace should have been suppressed as fruit of the poisonous tree; (4) the search warrant in the original record h ad no relation to his residence ; (5) a Miranda violation; (6) a due process challenge to hi s conviction’s classification as an eighty-five percent crime; (7) he was improperly conv icted under the aggravated pos session of child pornography statute as it existed at the time of sentencing rather than at the time of the alleged conduct; and (8) his convi ctions violated the Double Je opardy Clause of the Fifth Amendment.7 II. ANALYSIS The Antiterrorism and Effective Death Penalty Act (“AEDPA”) con ditions a state prisoner’s right to appeal a den ial of habeas relief on the gra nt of a COA, which is unavailable unless the applicant demonstrates a “substantial sh owing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A), (c)(2). Where , as here, a district court has rejected the constitutional claims on the merits, “the peti tioner must demonstrate that reasonable jurists would find the district court’s assessment o f the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. West does not make the required showing, so we deny his request. We address Mr. West’s arguments b elow in the same order as the district court: (1) Fourth Amendment challenge t o the search and seizure; (2) Miranda claim; (3) applicability of the eighty-five percent rule; (4) challenge to the definition of child pornography; (5) double jeopardy claim; and (6) ineffective ass istance of counsel. 8 In reviewing these claims, we provid e additional factual and proce dural background as necessary to perform the AEDPA analysis.
A. Grounds III and IV—Challenges to the Search and Seizure In Ground III, Mr. West argues th e red laptop and hard drive, s eized during a warrantless search of his wor kplace, should have been suppresse d as fruits of an unconstitutional search. He also a rgues, in Ground IV, that the search warrant

8 In addition to his applicationfor a COA and ac companying brie f, Mr. West filed a second motion for a COA and a second opening brief. We constr ue his second motion as a motion to supplement his initial application for a COA. We GRANT the motion to supplement and conside r both briefs together.8 included in the original record was fatally def ective because i t listed an incorrect address, date, and items to be s eized. Mr. West raised these cl aims in his application for post-conviction relie f in the state court. See ROA at 286–303. The state trial court concluded these issues were pro cedurally barred and did not con sider them on the merits. Id. at 42. But in the “interest of e fficiency” the federal distric t court “avoid[ed] deciding [the] proce dural bar questions [because the ] claims can be readily dismissed on the merits.” West , 2018 WL 1442976, at *3. Under Stone v. Powell , “where the State has provide d an opportunity for full and fair litigation of a Fourth A mendment claim, a state prison er may not be granted federal habeas corpus relief on the ground that evidence obtain ed in an unconstitutional search or seizur e was introduced at his trial. ” 428 U.S. 465, 494 (1976) (footnote omitte d). This court has he ld that a state pro vides “full and fair litigation” when: trial counsel inform[s] the tri al court of the factual basis fo r a Fourth Amendment claim, appellate counsel present[s] the issue to the state appellate court on direct appeal, and the state courts thoughtf ully consider[] the facts underlying petitioner’s Fourth Amendment c laim but reject[] it on the merits by applying appropriate Supreme C ourt precedents. Matthews v. Workman , 577 F.3d 1175, 1194 (10th Ci r. 2009) (internal quotation marks omitted). The district court concluded that Mr. West’s Fourth Amendment c hallenges were fully and fairly litigat ed in the state courts. West , 2018 WL 1442976, at *4–5. Our review of the record confirms that conclusion. Mr. West’s t rial attorneys made9 an oral motion to suppress during the preliminary hearings and followed up with a written motion. Later, Mr. West’s trial attorneys renewed the m otion, and the state trial court held a hearing on it . After the trial court denied the motion to suppress and Mr. West was convicted at a benc h trial, appellate counsel rais ed the suppression claims to the OCCA. But the OCCA determined the trial court cor rectly denied the motions. And in his pro se post-c onviction application, Mr. Wes t again asserted his Fourth Amendment claims, which th e state courts denied. Indeed, even Mr. West acknowledges that “[t] he method employed . . . in . . . seizing computer equipment and other items, all without a w arrant or consent, was heavily litigated by written and oral Motions to Suppress” and in cluded an “extended hearing on the Suppression Motion.” Accordingly, challenges to the search and seizure were fully and fairly litigated during Mr. West’s tria l, direct appeal, and post-conv iction application. Mr. West argues, however, that he did not receive “full and fai r litigation” in the state court proceedings becau se the OCCA never addressed hi s Fourth Amendment challenge to the warra ntless search of his workplace, instead determining the search was consen sual. But “[v]oluntary consent to search” is an exception to the Fourth Amendmen t prohibition on warrantless se arches, United
States v. Jones , 701 F.3d 1300, 1317 (10th Cir. 2012) (quotation marks omitted ), and “[a] warrantless consent search is reasonable a nd thus consiste nt with the Fourth Amendment irrespective of the availability of a warrant,” Fernandez v. California , 571 U.S. 292, 306 (2014). Accord ingly, the state courts rejecte d Mr. West’s Fourth Amendment claim on the merits “ by applying appropriate Supreme Court10 precedents.” Matthews , 577 F.3d at 1194 (internal quot ation marks omitted). As a result, the state courts were not required to address whether t he officers had probable cause to procure a warrant for M r. West’s place of employment o r whether exigent circumstances justified the wa rrantless search. The state court s reasonably concluded that Ms. Fitch’s consent to the s earch of the server room is an exception to the Fourth Amendment warrant requirements. Mr. West had a full and fair oppo rtunity to litigate his claims

. See Smallwood v. Gibson , 191 F.3d 1257, 1265 ( 10th Cir. 1999) (affi rming denial of hab eas relief pursuant to Stone where petitioner moved to suppre ss evidence, objected at trial , and raised the issue to the OCCA on direct appeal). 9 Thus, reasonable jurists would not find the district court’ s determination that it was precluded f rom considering Mr. West’s claims in Gr ounds III and IV under Stone debatable or wrong. See Slack , 529
U.S. at 484.

9 Mr. West also argues that he co uld not have received “full and fair litigation” because the correct search warrant was not included in the orig inal record on appeal. But the record indicates otherwise. It is true that the original re cord included a search warrant for an unrelated criminal inves tigation. But that error was cor rected and Mr. West’s attorneys had access to the corre ct search warrant, which was m ade part of the state court record in response to Mr. West’ s post-conviction application. Compare O.R. at 50 (Motion to Suppress Warrantless S earch and Seizure of Defendant ’s Laptop Computer) (“The search warrant described aspecific address of a single f amily residence in the city of Perkins, Oklahoma and specifi c items to be searched for and seized including computer equipment or any medium t hat would contain alleged ima ges of child pornography.”), with ROA at 478–81 (correct search warrant) (listing residence as a n address in Perkins and the items to be seized as computers and computer hardware that may contain child pornography). F urthermore, the state trial co urt referred to the correct warrant in its denial of Mr. West’ s application for post-convic tion relief.11 B. Ground V—Alleged Miranda Violation In Ground V, Mr. West alleges th e police officers never read hi m his Miranda rights despite detaining and in terrogating him outside his offi ce. Mr. West raised this argument in his state post-convic tion application, but the stat e trial court mistakenly determined the claim had beenraised on direct appeal, and it t herefore declined to consider it. See West , 2018 WL 1442976, at *6. Becau se Oklahoma courts had not addressed the claim on the merits , the district court properly exercised independent review over the claim, Hooks v. Ward , 184 F.3d 1206, 1223 (1 0th Cir. 1999), presuming any relevant “determination of a factual issue made by a State court . . . to be correct” unless rebutted “by clear and conv incing evidence,” 28 U.S.C. § 2254(e)(1). The district court determined M r. West’s statement that the red laptop was in the server room did not implicate his Miranda rights. West , 2018 WL 1442976 , at *7. “The
Miranda rule protects against violati ons of the Self-Incrimination Cla use, which . . . is not implicated by the introducti on at trial of physical evidenc e resulting from voluntary
statements.” United States v. Patane , 542 U.S. 630, 634 (2004 ) (plurality opinion). “[P]hysical evidence obtained a s fruit of a voluntary statementby a defendant to a lawenforcement officer is admissibl e at trial regardless of whethe r the officer gave the defendant Miranda warnings.” United States v. Phillips , 468 F.3d 1264, 1265 (10th Cir. 2006). “[T]he ultimate issue of volun tariness . . . is a question of l aw,” United States v. McNeal , 862 F.3d 1057, 1061 (10th Ci r. 2017), but the analysis involv es “the totality of all the surrounding circumstances —both the characteristics of t he accused and the details12 of the interrogation.” Schneckloth v. Bustamonte , 412 U.S. 218, 226 (1 973). Accepting, as it must, the state court’s findings of fact, the district co urt determined that Mr. West’s statements about the laptop’s location were voluntary and uncoe rced. The state court found: From the evidence it appears to t his Court that at the time the statements in question were made by [Mr. West] to the Stillwater Police Depar tment detective that [Mr. West] was not deprived of his freedom of ac tion to the degree associated with a formal a rrest and that said statements were the product of free and deliberate c hoice of [Mr. West]. Said state ments were given by [Mr. West] in a familia r or neutral location, i.e. the parking lot of [Mr. West]’s place of employment in view of other persons besid es law enforcement officers; [Mr. West] at no time was placed in handc uffs or placed on the ground o r any other compromis ing posture; the pol ice followed or accompanied [Mr. Wes t] from the building of his emp loyer to the parking lot without obviou s control or restraint by the pol ice as opposed to being ordered by the police to accompany them ; the police di d not forcibly enter the premises of [M r. West]’s place of employment ; [Mr. West] was told by the poli ce officer he was not under arre st and would not be arrested that day; [Mr. Wes t] was not subj ected to physi cal abuse or intimidation by the police; and [Mr. West] is 52 years old, andappears to possess at a minimum a reasona ble level of intelligence. O.R. at 96–97. Mr. West adduces s ome evidence to challenge the conclusion that his statement was voluntary, 10 but this evidence falls outside the state trial court’s factua l findings, and Mr. West has not shown by clear and convincing ev idence that those

10 Specifically, Mr. West points to Ms. Fitch’s testimony that he was between two cars and there was an officer on either side of the exit. Howev er, this evidence cannot overcome the presumption in fa vor of the state court’s finding that he “was not deprived of his freedom of action to the d egree associated with a formal arrest and that said statements were the product o f free and deliberate choice.” See O.R. 96–97; see also Stansbury v. California , 511 U.S. 318, 322 (1 994) (“[A] court must examine all of the circumstances surrounding the i nterrogation, but “the ultimate inquiry is simply whether there was a formal arrest or re straining on freedom of movement of the degree associated with a formal arrest.” (quoting California v. Beheler , 463 U.S. 1121 , 1125 (1983) (quotation marks omitted)).13 findings were incorrect. See Grant v. Royal , 886 F.3d 874, 889 (10t h Cir. 2018) (“[A]ny state-court findings of fact tha t bear upon the claim are entit led to a presumption of correctness rebuttable only by cl ear and convincing evidence.” (quotation marks omitted)). Thus, reasonable jurist s would not find the district court’s conclusion that Mr. West’s statement to the police wa s voluntary, and therefore didnot implicate Miranda , debatable or wrong.
C. Ground VI—Challenge to the Eighty-Five Percent Rule Mr. West argues that aggravated c hild pornography was not an en umerated felony to which the eighty-five percent rule applied until 2015 —several years after he committed the crime. Thus, he contends it is an ex post fact o law that has increased his sentence by denyi ng him earned time credits in vi olation of the Fifth and Fourteenth Amendments to th e federal Constitution. Although Mr. West objected to the classification of his cri me of conviction as an eighty-f ive percent crime in the state court, he did not couch th e argument in federal constitut ional terms. As a result, the OCCA ruled only on the state law question of whether the cr ime of conviction qualified as an eighty-five perce nt crime, holding that it did. Thus, the district court was free to independently consider Mr. West’s federal constitut ional claim. Littlejohn v. Trammel , 704 F.3d 817, 825 (10th Cir. 2013). And we can grant a COA on that claim only if the district court’ s decision is fairly debatable

. Slack , 529 U.S. at 484. Oklahoma law provides a person c onvicted of a felony enumerated in Oklahoma Statute title 21, § 13.1 “shall not be eligible for pa role consideration prior to serving eighty-five percent ( 85%) of the sentence imposed.” Okla. Stat. tit. 21,14 § 12.1. The statute also prevents inmates convicted of the enum erated offenses from being “eligible for earned credits or any other type of credits which have the effect of reducing the length of the senten ce to less than eighty-five pe rcent (85%) of the sentence imposed.” Id. Mr. West argues that aggravat ed child pornography was not an enumerated felony to which th e eighty-five percent rule appl ied until 2015— several years after he committed the crime. Mr. West argued in the district court that because aggravated c hild pornography was not enum erated in the statute when he was convi cted, it is an ex post facto law that has unconstitu tionally increased his senten ce by denying him earned time credits. The district court rejected his argument, reasoning that “application of the 85% Rule . . . does not extend the duration of incarceration beyond the term of years initial ly imposed[.] [I]t merely postp ones the date on which an inmate is initially eligible to be considered for parole.” West , 2018 WL 1442976, at *7. Reasoning that Mr. West “l acks any federal due process r ights in the parole process,” the district court conc luded he also lacked a liberty interest protected by the federal Due Process Clause. Id. As we now explain, the distr ict court’s decision is not fairly debatable. To establish a due process viola tion, Mr. West “must first demo nstrate that he has been deprived of a constitu tionally-protected liberty or pr operty interest.” Boutwell v. Keating , 399 F.3d 1203, 1211 (10th Cir . 2005). As a general matter, th ere is no federal constitu tional right to parole. Greenholtz v. Inmates of Neb. Penal and Corr. Complex , 442 U.S. 1, 7 (1979) (“There i s no constitutional or inherent right of15 a convicted person to be conditi onally released before the expi ration of a valid sentence.”). Moreover, this court has repeatedly held that wher e a state’s “parole scheme is discretionary, [a pr isoner] has no constitutionally p rotected due process liberty interest in parole.” Griffith v. Bryant , 625 F. App’x 914, 9 17 (10th Cir. 2015) (unpublished); see Boutwell , 399 F.3d at 1213–15; Shirley v. Chestnut , 603 F.2d 805, 807 (10th Cir. 1979). Because the e ighty-five percent rule does not implicate a constitutionally protected inter est, Mr. West cannot successful ly allege a due process violation based on its applicati on to his sentence. Therefore, the district court’s rejection of Mr. West’s due pro cess challenge was neither debat able nor wrong.
D. Ground VII—Challenge to the De finition of Child Pornography Mr. West next asserts an ex pos t facto challenge, observing tha t after he committed the crime but before hi s conviction, Oklahoma modifie d the definition of “child pornography” to provide that “[e]ach v isual depiction or individual image shall constitute a separate it em and multiple copies of the sam e identical material shall be counted as a separate ite m.” Okla. Stat. tit. 21, § 10 24.1(A) (eff. Nov. 1, 2012). Mr. West did not raise thi s claim on direct appeal or po st-conviction in the state court, but the district c ourt exercised it s discretion to avoid the procedural bar issue and to instead dismiss the claim on the merits. See Brown , 515 F.3d at 1092–93. Mr. West does not elaborate on hi s argument beyond a mere asser tion that the definition was misapplied, there by somehow depriving the state court of jurisdiction to enter sentence. Construi ng his argument liberally, James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013), the district court interpreted Mr. West’ s argument as: prior to16 inclusion of this definition, a ll the images on his single exte rnal hard drive would have been lumped together as one “material,” and thus would not have constituted “aggravated” possession of child pornography u nder § 1040.12a. West , 2018 WL 1442976, at *8. The district cour t rejected this argument, reas oning that the same definition of child pornography “i s used throughout multiple st atutes,” including the criminal statute operative at the time he committed the crime. Id. Mr. West is correct that the sp ecific language he highlights w as added to § 1024.1(a) after he committed th e crime of conviction. Nonethe less, his argument fails because the aggravated po ssession of child pornography st atute already included similar language. See Okla. Stat. tit. 21 § 1040.12a ( 2011) (describing the offense as the “possess[ion of] one hundred (100) or more separate materia ls depicting child pornography” and defini ng “material” as “all digital and comput erized images and depictions”). And that language h ad been interpreted consistent with the subsequent amendment. See Hamilton v. State , 387 P.3d 903, 906 (Okla. Crim. App. 2016) (rejecting appellant’s claim tha t “multiple obscene images on a single computer hard drive should be considered a si ngle item of contraband,” becaus e Oklahoma Statute title 21, § 1040.12a “punishes th e possession of 100 or more ‘s eparate materials’” and “[t]he Legislature clearly i ntended that each visual image of child pornography should constitute a separate ‘mat erial’ for purposes of [Okla. Stat. tit. 21, § 1040.12a].”). Because the pre vailing definition under Oklahom a’s aggravated possession of child pornography s tatute at the time Mr. West co mmitted the crime defined each image as a “separat e material,” the district court ’s rejection of Mr.17 West’s ex post facto challenge t o Oklahoma’s statutory definiti on of child pornography was neither debatable nor wrong.
E. Ground VIII—Alleged Double Jeopardy Clause Violation The state court convicted Mr. Wes t of two felonies: (1) aggrava ted possession of child pornography and (2) unlaw ful use of a computer network to violate an Oklahoma statute, in this case th e possession of child pornogra phy. Mr. West contends both offenses punish t he same action and so his convic tions violate the Double Jeopardy Clause o f the Fifth Amendment. See Benton v. Maryland , 395 U.S. 784, 787 (1969) (holdi ng “the Double Jeopar dy Clause of the Fif th Amendment is applicable to the States throug h the Fourteenth Amendment”). On direct appeal in state court, M r. West raised only a state l aw claim, challenging the two convictions a s double punishment in violati on of Oklahoma law. Consequently, the OCCA ruled only on the state law issue. Mr. W est raised his federal double jeopardy argument fo r the first time in state po st-conviction proceedings, and the state courts rejected the argument as proc edurally barred. 11 The district court rejected Mr. W est’s constitutional claim, ex ercising its discretion to consider the issue on the merits. See Slack, 529 U.S. at 485 (holding that where the claim was dismissed on procedural grounds without rea ching the merits, the

11 Mr. West raised this argument in his state post-conviction pet ition as part of “Ground VIII” for relief. ROA at 2 8–29. The state trial court r ejected this argument as procedurally barred, mistakenly concluding it was “addressed by the direct appeal and summary opinion and res judicata bars Petitioner from further relief.” Id. at 42. The OCCA affirmed. Id. at 45–46.18 court of appeals may dispose o f it on the merits or procedural bar, depending on which “answer is more apparent from the record and arguments”). The d istrict court evaluated the double jeopardy claim under Blockburger v. United States

. West , 2018 WL 1442976, at *9. In Blockburger , the Supreme Court held “where the same act or transaction constitutes a viola tion of two distinct statutory p rovisions, the test to be applied to determine whether t here are two offenses or only one , is whether each provision requires proof of a fact which the other does not.” 2 84 U.S. 299, 304 (1932). And since Blockburger , the Supreme Court has expressly rejected the argument that criminal prosecuti on for multiple felonies stemmi ng from the same single act violates the Double Je opardy Clause if the offenses have distinct elements. United States v. Dixon , 509 U.S. 688, 704 (1993). Aggravated possession of child pornography requires the state to prove the defendant: (1) knowingly, (2) po ssessed, (3) one hundred or mor e separate images of (4) child pornography. Okla. Sta t. tit. 21, § 1040.12a. In comp arison, unlawful access to a computer to violate an Okla homa statute requires the state to prove the defendant: (1) communicated with or retrieved data from, (2) a computer system or network, (3) for the purpose of using the access to violate an Oklahoma statute. Okla. Stat. tit. 21, § 1958. As illustrated above, Mr. West’ s two offenses contain differen t elements. Where the convictions require d proof of different facts, Blockburger dictates that no double jeopardy violation occu rred. 284 U.S. at 304. Thus, the district court’s19 conclusion rejecting Mr. West’s double jeopardy claim was neith er debatable nor
wrong. F. Grounds I & II—Ineffective Assistan ce of Trial Counsel and Appellate Counsel Mr. West claims he received ine ffective assistance of trial and appellate counsel. With respect to ineffective assi stance of trial counsel, the st ate trial court concluded these claims “could or should have bee n raised on direct appeal and P etitioner has therefore waived consideration of those issues as grounds for relief thro ugh the Post-Conviction process.” The OCCA affirmed tha t ruling. The federal district c ourt agreed that “the majority of Petitioner’s federal cl aims are either unexhausted and/or potentially procedurally barred,” but it cons idered and rejected each of th ese claims on the merits.
West , 2018 WL 1442976, at *3. As to the claims of ineffective assistance of appellate counsel , the state trial court considered each ground asserted a nd rejected it on the merits. The OCCA affirmed, concluding, “Petitioner h as not established that any of the all eged errors for which he claims his appellate counsel was ineffective would provide a re asonable probability that the result of his appeal wou ld have been different.” Applying the framework of Strickland v. Washington , 466 U.S. 668 (1984), the district court found the OCCA h ad reasonably denied all of Mr. Strickland’s ineffective assistance claims. West , 2018 WL 1442976, at *10. The first prong of Strickland mandates that the defendant “must show that counsel’s performan ce was deficient”; the second prong requires the defendan t to show “that the deficient performance prejudiced20 the defense” by “depriv[ing] the defendant of a fair trial.” 46 6 U.S. at 687. Counsel’s performance is “deficient” if it is “outside the wide range of professionally competent assistance.” Id. at 690. “[C]ounsel is strongly presumed to have rendered adequ ate assistance and made all significan t decisions in the exercise o f reasonable professional judgment.” Id. As we now explain, based on th is standard, no reasonable juris t would find the district court’s conclusion debatable or wrong. See Slack , 529 U.S. at 484.
1. Ineffective Assistance of Trial Counsel

a. Failure to adequately examine the original record In Ground II(1)(a), Mr. West argu es that his trial counsel was ineffective because counsel did not adequately exam ine the original record for erro rs—in particular, the absence of the search warrant authorizing a search of Mr. West’ s residence. As the district court observed, howeve r, trial counsel had access to t he correct search warrant and referred to it in his submi ssions to the state trial court. See West , 2018 WL 1442976, at *10; O.R. at 50 (Motion to S uppress Warrantless Search and S eizure of Defendant’s Laptop Computer); see also supra note 9. Although the original record did not include the correct search warrant, the w arrant existed and was promptl y provided by the State when notified of the error. Acco rdingly, no prej udice could hav e arisen from counsel’s failure to identify this error i n the original record sooner, a nd no reasonable jurist would find the district court’s denial of this claim debatable or wro ng. b. Failure to adequately investigate surrounding circumstances In Ground II(1)(b), Mr. West assert s that trial counsel failed to adequately: (i) investigate other individuals who lived at Mr. West’s resid ence and had access to his21 computer equipment and interne t; (ii) prepare for preliminary h earings; (iii) review the search warrant; (iv) ascertain whether Mr. West was given a Miranda warning; and (v) ascertain whether a search w arrant was actually issued for Mr. West’s residence. But Mr. West has not explained how a ny of the above alleged inadequ acies have prejudiced him. Furthermore, as discussed above, the correct warrant was p roduced, and trial counsel did argue (albeit unsuc cessfully) that Mr. West was not given a Miranda warning. Therefore, no reasonable jurist would dispute the dist rict court’s denial of this ineffective assistance of counsel claim

c. Failure to secure an expert witness an d sufficiently examine State’s expert In Grounds II(1)(c) and (e), Mr. Wes t argues that his trial att orneys provided ineffective assistance by not ca lling an expert witness to refu te the State’s expert witness and for not sufficiently examini ng the State’s forensic expert regarding the methods used to search Mr. West’s computer. Mr. West argues that the State’s expert witness testimony regar ding how the child pornography was discovered and li nked to Mr. West was “so techn ical that all attorneys and even the Trial Court itself w ere somewhat ‘at sea.’” ROA at 10. Because of the expert’s purportedly nebulous explanation, Mr. West asserts his counsel should have cross-examined the expert or, in the alternative, called an exp ert witness for the defense. But Mr. West does not e xplain how cross-exam ination of the Stat e’s expert would have affected the outcome of trial or w hat his own expert would have testified. See Strickland , 466 U.S. at 687 (requiring a show ing “that [counsel’s] deficien t performance prejudiced the defense”).22 Absent any theory of how Mr. Wes t was prejudiced, no reasonable jurist could dispute the district court’s deni al of this ineffective assista nce of counsel claim. See
James , 724 F.3d at 1315 ( holding we will not act as the appellant’s advocate). d. Failure to properly comm unicate with Mr. West Mr. West claims in Ground II(1)(d ) that his counsel did not pro perly communicate with him because they failed to: (i) request in-depth consultat ion with him to ascertain specific facts; (ii) relay that they were unknowledgeable about the technical facts in the case and were unable to adequate ly communicate with him regardi ng those technical facts; (iii) acknowledge corres pondence sent from Mr. West in j ail; (iv) discuss trial strategy with him; and, (v) prepa re him to testify for hearings and trial. Despite accusing his a ttorneys of these inadequacies, Mr. West again omits any argument as to how this prejudi ced him at trial. Without any sh owing of prejudice, no reasonable jurist could dispute the district court’s finding th at the OCCA reasonably denied Mr. West’s ineffective as sistance claims based on failur e of trial counsel to communicate.

e. Failure to argue that Mr. West was being charged under a statute inapplicable to the crimes he was charged with In Ground II(1)(f), Mr. West alleges his counsel failed to argu e that his crime did not fit the statutory requiremen t of Oklahoma Statute title 21, § 1040.12a requiring possession of over 100 materials o f child pornography. For the reasons explained above, Mr. West was properly charged and convicted under this statute. See supra Section II.C. Therefore, if Mr. West’s counsel o bjected to the charges, his o bjection would have been23 meritless. Counsel is not ine ffective for failing to raise a me ritless objection. Sperry v.
McKune , 445 F.3d 1268, 1275 (10th Cir. 2006). Thus, the district court’s conclu sion that the Oklahoma courts reasonably denied Mr. West’s ineffective assistan ce of trial counsel claims is no t debatable or wrong.
2. Ineffective Assistance of Appellate Counsel Mr. West argues his appellate counsel was ineffective for faili ng to raise an ineffective assistance of trial counsel claim related to the cl aims discussed in Section II.F.1 and for failing to: (1) adequately challenge the warrant less search of Mr. West’s workplace; (2) adequately argue the double jeopar dy violations; (3) argue that Mr. West’s statements should have been sup pressed; and (4) argue on direct appeal that trial counsel was ineffective for failing to i mmediately appeal the trial cou rt’s suppression decision. As discussed, Mr. West has not sho wn any constitutional violati ons resulting from ineffective assistance of trial counsel. See supra Section II.F.1. Thus, Mr. West cannot show prejudice from his appellate counsel’s failure to argue in effective assistance of trial counsel. See Smith v. Robbins , 528 U.S. 259, 289 (2000) (holdi ng that defendant “must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel” ). We now consider the claims u nique to appellate counsel. Regarding Mr. West’s first and second challenges, appellate cou nsel did make arguments based on the warrantle ss search and alleged double je opardy. See ROA at 150–57. Mr. West does not explainhow his counsel’s performance fell short of the Strickland standard, but instead, only rest ates the facts that occurred on the date of the24 seizure of his red laptop. We give deference to the OCCA’s meri ts ruling affirming the trial court’s denial of post-conviction relief, see Smith v. Duckworth , 824 F.3d 1233, 1242 n.6 (10th Cir. 2016) (“[B]ecause the OCCA considered the merits of [the underlying] claim in considering whether ine ffective assistance excused his procedural default, we must apply AEDPA deference to the OCCA’s evaluation of that [un derlying] claim.”), and Mr. West has not shown the O CCA unreasonably applied federa l law in rejecting his post-conviction application. Thus , the district court’s rejecti on of these arguments is not debatable or wrong. Mr. West’s next challenge is that appellate couns el should have argued for suppression of Mr. West’s statemen ts about the red laptop’s loc ation because Mr. West was under an interrogative atmosphere and received no Miranda warning. Mr. West cannot show prejudice from appe llate counsel’s failure to raise this argument because, as the district court concluded ba sed on the OCCA’s factual findin gs, Mr. West’s statements were voluntary. See supra Section II.B. Moreover, regardle ss of whether he was entitled

to a Miranda warning, the physical evidence police found based on Mr. West’ s statements did not merit suppression. Id. Mr. West’s last challenge is that appellate counsel performed ineffectively by not immediately appealing the tria l court’s suppression decision. B ecause Mr. West’s appellate counsel had not yet been appointed at that stage of the proceedings, w e construe his argument as faulting trial counsel for not immediately appealing. In any event, his argument fails becau se an “order overruling [a] moti on to suppress . . . [is] not a final order in the case and hence not appealable.” Hughes v. State , 172 P.2d 435, 43825 (Okla. Crim. App. 1946); see also Di Bella v. United States , 369 U.S. 121, 131 (1962) (“Orders granting o r denying suppression . . . are truly interl ocutory, for the criminal trial is then fairly in train.”). Be cause counsel could not have imme diately appealed the adverse suppression decision, counsel could not have been ineff ective for failing to do so, nor could appellate co unsel be ineffective for failing to argue trial counsel should have done so. See Cargle v. Mullin , 317 F.3d 1196, 1202 (10th Ci r. 2003) (“[I]f the issue is meritless, its omission will not c onstitute deficient performan ce.”). In sum, Mr. West has failed to pla usibly allege that his counse ls’ performance was deficient or prejudicial at either the trial or appellate stage . Accordingly, the district court’s conclusion that the OCC A reasonably found no ineffectiv e assistance of counsel is neither debat able nor wrong.
III. CONCLUSION Mr. West has not demonstrated tha t the district court's assessm ent of any of his constitutional claims is debatable or wrong. See Slack , 529 U.S. at 484. Therefore, we
DENY his request for a COA and DISMISS this appeal. 12

12 Mr. West has also filed a motio n requesting this court “declar e the Oklahoma Aggravated Pornography Statute , Procedure, Conviction and Sente nce . . . Unconstitutional” because it violat es the First Amendment and the Double Jeopardy Clause of the Fifth Amendment and arguing he was denied his con stitutional right to a trial by jury. Mr. West also filed a motion “to review and gran t relief on . . . grounds for relief non-exhausted [ sic ],” “to declare exhaustion futile ,” and “to grant plain error review and relief.” He is not en titled to a COA on these issues . At no point prior to these proceedings has Mr. West raised a ny of these arguments. As such , they are unexhausted in state court and furthermore we generally “do not address arg uments presented for the first time on appeal.” United States v. Moya , 676 F.3d 1211, 1213 (10th Cir. 2012). “A district court cannot be debatabl y wrong on issues that are not fairly presented to or26 Entered for the Court
Carolyn B. McHugh Circuit Judge

decided by it.” United States v. Clifton , 728 F. App’x 880, 8 82 (10th Cir. 2018) (unpublished) (citation and quotation marks omitted). We theref ore DENY these motions. Mr. West has also filed a motion to submit transcript excerpts. Because Respondent Jason Bryant has filed the complete transcripts alon g with the original state court record, we DENY Mr. West’s motion as moot. Finally, Mr. West has filed a mo tion to proceed i n forma pauper is. “An appeal may not be taken in forma pauperi s if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 19 15(a)(3). Although the trial cour t so certified in this case, Mr. West “may nonetheless move t his court for leave to proceed on appeal in forma pauperis pursuant to t he mechanism set fort h in” Federal Rule o f Appellate Procedure 24(a)(5). Rolland v. Primesource Staffing, L.L.C. , 497 F.3d 1077, 107 9 (10th Cir. 2007). As in the district court, “to s ucceed on his motion, an appella nt must show a financial inability to pay the required fili ng fees and the existence of a reasoned, nonfrivolous argument on the law and facts insupport of the issues raised o n appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10t h Cir. 1991). After careful considerati on of Mr. West’s application, we agree with the d istrict court that he has not s hown the existence of such a reasoned, nonfrivolous argument . His motion for leave to procee d in forma pauperis is accordingly DENIED.