UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANTOINE DARNELL LESLIE, 

 Petitioner - Appellant, 

v. 

JASON BRYANT, Warden, 

 Respondent - Appellee. 

No. 18-6097 

(D.C. No. 5:17-CV-01159-HE) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING A CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, KELLY, and PHILLIPS, Circuit Judges. 

_________________________________ 

Antoine Darnell Leslie, an Oklahoma prisoner proceeding pro se, seeks a 

certificate of appealability (COA) to appeal from the district court’s denial of his 

28 U.S.C. § 2254 habeas application challenging his drug-trafficking conviction. We 

deny a COA and dismiss this matter. 

I. BACKGROUND 

While Leslie was driving on Interstate 40 through Oklahoma in September 

2013, a state narcotics agent conducted a traffic stop and became suspicious that he 

was transporting drugs. A drug dog alerted to Leslie’s car, and agents found twelve 

 * This order is not binding precedent, except under the doctrines of law of the 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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 7, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

packages of cocaine hidden under the back seat. After a jury found him guilty of 

aggravated trafficking in illegal drugs, in violation of Okla. Stat. tit. 63, 

§ 2-415(C)(2)(c), the state trial court sentenced him to 35 years’ imprisonment. The 

Oklahoma Court of Criminal Appeals (OCCA) affirmed. Leslie’s state 

post-conviction proceedings also were unsuccessful. 

Leslie’s federal habeas application raised five claims: (1) the trial court 

should have suppressed the cocaine because the agent unreasonably extended the 

traffic stop, in violation of the Fourth Amendment; (2) trial counsel was ineffective 

in failing to preserve the suppression issue and in failing to call Leslie to testify at the 

trial court’s suppression hearing; (3) appellate counsel was ineffective in conceding 

the legality of the stop; (4) the state failed to prove all elements beyond a reasonable 

doubt; and (5) the prosecutor made improper comments at closing that deprived 

Leslie of a fair trial. The magistrate judge recommended that all the claims be 

denied: the first claim under Stone v. Powell, 428 U.S. 465, 494 (1976); the third 

claim on the merits, under the deferential standards of § 2254(d); and the second, 

fourth, and fifth claims as procedurally barred by having been defaulted in state 

court. Leslie timely objected. The district court ultimately accepted the magistrate 

judge’s recommendations, denied the § 2254 application, and denied a COA. 

II. ANALYSIS 

To appeal, Leslie must obtain a COA, which requires making “a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That 

demonstration “includes showing that reasonable jurists could debate whether (or, for 
3 

that matter, agree that) the petition should have been resolved in a different manner 

or that the issues presented were adequate to deserve encouragement to proceed 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks 

omitted). For claims denied on the merits, Leslie “must demonstrate that reasonable 

jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Id. But for claims denied on procedural grounds, Leslie must 

show not only that reasonable jurists could debate “whether the petition states a valid 

claim of the denial of a constitutional right,” but also that reasonable jurists could 

debate “whether the district court was correct in its procedural ruling.” Id. 

A. First Claim – Fourth Amendment Violations 

Leslie’s first claim alleged Fourth Amendment violations with regard to the 

traffic stop. When Leslie challenged the stop in the state trial court, it held a hearing 

before declining to suppress the cocaine. Leslie then further challenged the stop 

before the OCCA, which upheld the stop. The federal district court held the claim 

was precluded by Stone, which bars federal habeas claims concerning Fourth 

Amendment violations so long as “the State has provided an opportunity for full and 

fair litigation” of the claim. 428 U.S. at 494. The district court rejected Leslie’s 

assertions that the state courts’ handling of the claim was not “full and fair” because 

the courts should have suppressed the cocaine. 

Leslie was able to argue his Fourth Amendment claims both before the trial 

court and before the OCCA, and the state courts considered his challenges under the 

appropriate law. Thus, he had a full and fair opportunity to litigate his claims. 
4 

See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009); Smallwood v. 

Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999); Gamble v. Oklahoma, 583 F.2d 1161, 

1165 (10th Cir. 1978). Before this court, Leslie reiterates that the state court 

proceedings do not satisfy Stone because they were incorrectly decided. But the 

opportunity for full and fair litigation is not defeated merely because a party would 

have preferred a different outcome. See Matthews, 577 F.3d at 1194 (“Mr. Matthews 

argues that Oklahoma misapplied Fourth Amendment doctrine in reaching these 

conclusions, but that is not the question before us. The question is whether he had a 

full and fair opportunity to present his Fourth Amendment claims in state court; he 

undoubtedly did.”). Because no reasonable jurist could debate the district court’s 

application of Stone to this claim, we deny a COA. 

B. Third Claim – Ineffective Assistance of Appellate Counsel 

1. Habeas Standards 

 Because the state courts addressed the merits of Leslie’s claim that his 

appellate counsel was ineffective, the federal courts review the claim under 

§ 2254(d). Cullen v. Pinholster, 563 U.S. 170, 187 (2011). That section precludes 

habeas relief unless the state court’s decision (1) “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) “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). 
5 

 Under § 2254(d)(1), a state-court decision is contrary to Supreme Court 

precedent “if the state court arrives at a conclusion opposite to that reached by [the 

Supreme] Court on a question of law or if the state court decides a case differently 

than [the Supreme] Court has on a set of materially indistinguishable facts.” 

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). And a state court unreasonably 

applies Supreme Court precedent if it “identifies the correct governing legal principle 

from [the] Court’s decisions but unreasonably applies that principle to the facts of the 

prisoner’s case.” Id. at 413. “[A]n unreasonable application of federal law is 

different from an incorrect application of federal law.” Id. at 410. Thus, “for a state 

court’s decision to be an unreasonable application of [the] Court’s case law, the 

ruling must be objectively unreasonable, not merely wrong; even clear error will not 

suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam) (internal 

quotation marks omitted). 

As for § 2254(d)(2), “a state-court factual determination is not unreasonable 

merely because the federal habeas court would have reached a different conclusion in 

the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “Instead, § 2254(d)(2) 

requires that we accord the state trial court substantial deference. If reasonable 

minds reviewing the record might disagree about the finding in question, on habeas 

review that does not suffice to supersede the trial court’s determination.” Brumfield 

v. Cain, 135 S. Ct. 2269, 2277 (2015) (brackets, ellipses, and internal quotation 

marks omitted). 
6 

2. Substantive Legal Standards 

For ineffective-assistance claims, the clearly established federal law is 

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must 

demonstrate both that counsel’s performance fell below an objective standard of 

reasonableness and that counsel’s deficient performance resulted in prejudice to his 

defense. Id. at 687. To overcome the strong presumption that counsel’s performance 

was reasonable, the defendant must show that the alleged error was not sound 

strategy under the circumstances. Id. at 689. And under the prejudice prong, the 

defendant must establish “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. 

3. Analysis 

Where the state court has ruled on the merits of an ineffective-assistance 

claim, “[t]he pivotal question is whether the state court’s application of the 

Strickland standard was unreasonable. This is different from asking whether defense 

counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 

562 U.S. 86, 101 (2011). “[A] state prisoner must show that the state court’s ruling 

on the claim being presented in federal court was so lacking in justification that there 

was an error well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Id. at 103. 
7 

Leslie asserts that appellate counsel was constitutionally ineffective for 

conceding the initial validity of the stop under Oklahoma precedent that post-dated 

Leslie’s suppression hearing. As the district court noted, under the circumstances, it 

would not have been a viable strategy for counsel to continue to contest the initial 

validity of the stop. Citing Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App. 

2013), which itself cited Strickland, the OCCA held that Leslie had failed to show 

deficient performance or prejudice. We cannot conclude that any reasonable jurist 

could debate whether the OCCA’s ruling was so lacking in justification that Leslie 

would qualify for relief under § 2254(d)(1). Likewise, no reasonable jurist could 

debate whether the OCCA unreasonably determined the facts in light of the record, so 

that Leslie would qualify for relief under § 2254(d)(2). We therefore deny a COA on 

Leslie’s claim of ineffective assistance of appellate counsel. 

C. Remaining Claims 

Leslie raised his second, fourth, and fifth claims in his state post-conviction 

proceeding rather than in his direct appeal. The OCCA considered the claims to be 

waived because they could have been raised in the direct appeal but were not. Thus, 

the federal district court held these claims were defaulted in state court. It further 

held that the claims were procedurally barred on federal habeas review because 

Leslie had failed to establish cause and prejudice to excuse the default. See Coleman 

v. Thompson, 501 U.S. 722, 750 (1991). Leslie did not address cause and prejudice 

until his objections to the report and recommendation, when he argued for the first 

time that cause was established by his appellate counsel’s performance. The district 
8 

court held that “[b]y not raising [an] independent ineffectiveness claim [regarding 

counsel’s failure to raise the claim in the direct appeal] and not even mentioning its 

utility as cause and prejudice until his objection, petitioner has waived these 

arguments.” R., Vol. I at 235. 

It is well-settled that “[i]n this circuit, theories raised for the first time in 

objections to the magistrate judge’s report are deemed waived.” United States v. 

Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Before this court, Leslie again 

argues that ineffective assistance of appellate counsel was cause for the default. But 

he fails to address the district court’s determination that he waived his “cause and 

prejudice” argument by not timely raising it. And that failure itself results in a 

waiver on appeal of any challenge to the district court’s finding of waiver. 

See COPE v. Kan. State Bd. of Educ., 821 F.3d 1215, 1223 (10th Cir. 2016) 

(“Appellants do not raise this argument in their opening brief, and so it is waived.”). 

With Leslie having failed to challenge the district court’s finding of waiver regarding 

cause and prejudice, no reasonable jurist could debate the denial of relief on these 

claims. Accordingly, we deny a COA. 

D. District Court’s Fee Orders 

 In orders dated May 30, 2018, and June 15, 2018, the district court granted 

Leslie leave to proceed without prepayment of fees and costs (IFP), see 28 U.S.C. 

§ 1915(a)(1), and ordered partial payment of fees in installments until the total filing 

fees were paid, see id. § 1915(b). Section 1915(b), however, does not apply to 

§ 2254 actions or appeals therefrom. See United States v. Simmonds, 111 F.3d 737, 
9 

744 (10th Cir. 1997), overruled on other grounds, United States v. Hurst, 322 F.3d 

1256, 1261 n.4 (10th Cir. 2003). Accordingly, while the grant of IFP status stands, 

we vacate those portions of the May 30, 2018, and June 28, 2018, orders assessing 

partial payment of fees.1

 Notwithstanding this directive, Leslie is reminded that 

§ 1915(a)(1) excuses only prepayment of fees; he remains liable to pay the full 

amount of the appellate filing and docketing fees. 

III. CONCLUSION 

 Those portions of the district court’s May 30, 2018, and June 15, 2018, orders 

assessing partial payment of fees are vacated. A COA is denied, and this matter is 

dismissed. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 1

 We do not decide the fate of the payments made to the district court to date.