UNITED STATES COURT OF APPEALS TENTH CIRCUIT

MIKEL RAY HENDERSON, Petitioner–Appellant,

v. DAVID L. PARKER, Warden, Respondent–Appellee. Nos. 11-7060, 11-7067 (D.C. No. 6:10-CV -00283-JHP-KEW) (E.D. Okla.)

ORDER DENYING A CERTIFIC ATE OF APPEALABILITY *

Before LUCERO , ANDERSON , and GORSUCH , Circuit Judges.
Mikel Henderson, an Oklahoma state pr isoner proceeding pro se, applies for a Certificate of Appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 petition. Because all of Henderson’s claims are either procedurally barred

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 9, 2012
Elisabeth A. Shumaker Clerk of Court-2- or were reasonably adjudicated by Oklahoma courts, we deny a COA and dismiss his appeal.
I Police stopped Henderson, along with three passengers, for a traffic violation. Upon searching Henderson’s vehicle, po lice discovered over 2500 pseudoephedrine tablets in a bag on the rear-seat floorboar d. Police also found methamphetamine manufacturing equipment in the trunk. An Oklahoma jury convicted Henderson of unlawful possession of pseudoephedrine and sentenced him to life imprisonment and a $100,000 fine. A number of events from Henderson’s trial ar e relevant to this appeal. First, the Oklahoma court admitted all evidence from th e vehicle that was within Henderson’s reach, but suppressed any evidence that He nderson could not have reached from the driver’s seat. Second, a witness testified that at Henderson’s initia l appearance he had declared that “everything in th e car belonged to him” and th at the passengers in the car “knew nothing about it.” Fina lly, Henderson’s attorney did not call to the stand Sherry Moore, who was riding in the back seat of Henderson’s car when po lice stopped it. This omission is notable because Moore told police that the bag containing the pseudoephedrine belonged to a front-sea t passenger instead of Henderson. The Oklahoma Court of Criminal Ap peals (“OCCA”) affirmed Henderson’s conviction. Henderson filed a post-conviction application in state court, alleging that his counsel was ineffective. The state court de nied Henderson’s application, and the OCCA-3- affirmed. Henderson then filed the instant hab eas petition, which the district court denied.
II We may issue a COA “only if the applican t has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Henderson must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition s hould have been reso lved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 48 4 (2000) (quotation omitted). Henderson’s petition combines claims th at he raised in state post-conviction proceedings with claims that no Oklahoma state court has re viewed. Because different standards apply to each class of clai ms, we consider them separately. A Henderson raises two claims of ineffectiv e assistance of counsel, both of which the OCCA found meritless. When a state court has considered a habeas petitioner’s ineffective assistance claim on the merits, our court may reverse only if the decision was “contrary to, or involved an unreasonable app lication of clearly established Federal law,” 28 U.S.C. §2254(d)(1), or was “b ased on an unreasonable determination of the facts.” § 2254(d)(2). The established law governing in effective assistance of counsel claims is derived from Strickland v. Washington, 4 66 U.S. 688 (1984). Under Strickland, Henderson must show that his counsel’s performance fell belo w an objective standard of-4- reasonableness and that it resulted in actual pr ejudice to him. Id. at 687, 694. Thus, Henderson’s petition can succeed on these claims only if we deem the OCCA’s application of Strickland unreasonable. Henderson first contends that counsel wa s ineffective for stipulating that police had sufficient probable cause to search and seize the bag containi ng pseudoephedrine. Given that Henderson had an outstanding warrant for po ssessing chemicals with the intent to manufacture methamphetamine and a drug dog had signaled the presence of contraband in his car, the OCCA concluded that the search and seizure was indeed constitutional, and counsel, therefore, was not ineffective. We agree. Next, Henderson claims that counsel wa s ineffective for opening the door to previously excluded evidence. Under a pr etrial ruling, the court suppressed drugmanufacturing materials found in Henderson’s trunk. During cross-examination of a state witness, however, defense counsel asked a question that led the witness to tell the jury about one of the chemic als found in the trunk. Without determining whether counsel’s mistake constituted deficient perform ance, the OCCA held that Henderson did not suffer any prejudice because of th e error. Given the large quantity of pseudoephedrine pills a ttributed to Henderson, the OC CA concluded that the guilty verdict would not have been different regardless of the alleged error. Again, we agree. Accordingly, we deny COA for the cl aims reviewed by the OCCA.
B Henderson also asserts a number of claims that he did not raise before the OCCA.-5- These include a bevy of unexhausted ineffectiv e assistance of counse l claims. The most substantial of these claims concerns trial c ounsel’s failure to subp oena the testimony of Sherry Moore. Moore was riding in the back seat of Henderson’s car when it was stopped, and she told police that the ga rment bag containing the pseudoephedrine belonged not to Henderson but to a front-seat passenger. Henderson also raises an unexhausted cl aim of prosecutorial misconduct focusing on a central issue in his trial: whether the pseudoephedrine tablets seized from Henderson’s back seat were w ithin his “reaching distance,” and therefore admissible. The prosecutor introduced a diagram of th e interior of Henderson’s vehicle which depicted two front bucket seats. Using the diagram, the arresting officer testified that Henderson, while seated in his bucket seat, co uld have easily reached behind his seat to access the bag of pills resting on the rear floorboard. Henderson asserts that his vehicle does not have front bucket seats, but rath er has a front bench seat. Thus, Henderson argues, the prosecution introd uced misleading evid ence on the “reach ability” of the backseat bag and failed to correct false witne ss testimony about Henderson’s ability to reach the pills. Although the substance of these claims may raise doubts, even serious doubts, about Henderson’s trial, his failu re to exhaust them strictly delimits our power of review. In general, a habeas petitioner must exhaust his claims in state court before this court may review them. 28 U.S.C. § 2254( b)(1). Were Henderson to retu rn to state court to exhaust these claims, however, they would be proced urally barred under Oklahoma law, because-6- Henderson did not raise them in his initial application for state post-conviction relief. See Okla. Stat. tit. 22, § 1086 (all grounds fo r post-conviction relief must be raised in initial application). Henderson therefore must overcome an “anticipat ory procedural bar” to proceed on these claims. Anderson v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007) (“‘Anticipatory procedur al bar’ occurs when the fede ral courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if petitioners returned to state court to exhaust it.”). Henderson may circumvent th is procedural bar by making either of two alternate showings: he may demonstrate “cause and prejudice” for his failure to raise the claim or he may show that failure to review his clai m will result in a “fundamental miscarriage of justice.” Id. at 1140. The latter exception is met when a petitioner can make a persuasive showing that he is actually innocent. Ho use v. Bell, 547 U.S. 518, 536 (2006). Henderson principally relies on this exception to the procedural bar. The “actual innocence” excep tion is available only in the “extraordinary” case when “it is more likely than not that no reasonable juro r would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Although the petitioner must show some “new reliable evidence” of innocence to fall within the exception, actual-innocence claims must be evaluated in light of all the evidence in the case: “old and new, incrimin ating and exculpatory, without regard to whether it would necessarily be admitted.” Id. at 327-28. Moreover, courts must weigh the reliability of the new exculpatory evidence , including “the timing of the submission and the likely-7- credibility of the affiants .” Id. at 331-32. Henderson bases his actual innocence argument on Sherry Moore’s exculpatory statement, which was not pres ented to the jury that conv icted him. However, this exculpatory statement must be balanced against the totality of the evidence in this case, including the methamphetamine-manufacturing materials found in Henderson’s trunk and the incriminating statement he made at his in itial appearance. Moore’s statement is also uncorroborated. Accordingly, we find it clea r that a reasonable juror, considering all the evidence in the case, could ha ve found Henderson guilty bey ond a reasonable doubt. We thus conclude that Henderson has not established actual innocence to the degree required to excuse his procedural defau lt, and we are prevented from reviewing the merits of these claims.
III
We DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge