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 Okla homa prisoner proceeding pro se, seeks a certificate of appealability (COA) t o appeal from the district court’s denial of his 28 U.S.C. § 2254 habeas applica tion challenging his drug-traffi cking conviction. We deny a COA and dismiss this matter. I. BACKGROUND While Leslie was driving on Inte rstate 40 through Oklahoma in S eptember 2013, a state narcotics agent c onducted a traffic stop and beca me suspicious that he was transporting drugs. A drug dog alerted to Leslie’s car, an d agents found twelve

* This order is not binding preced ent, except under the doctrine s of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith 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 Court2 packages of cocaine hidden under the back seat. After a jury f ound him guilty of aggravated trafficking in illegal drugs, in viola tion of Okla. Stat. tit. 63, § 2-415(C)(2)(c), the state tri al court sentenced him to 35 yea rs’ imprisonment. The Oklahoma Court of Criminal App eals (OCCA) affi rmed. Leslie’s s tate post-conviction proceedings also were unsuccessful. Leslie’s federal habeas applicat ion raised five claims: (1) th e trial court should have suppressed the cocain e because the agent unreasonab ly extended the traffic stop, in violation of t he Fourth Amendment; (2) trial c ounsel was ineffective in failing to preserve the suppr ession issue and in failing to call Leslie to testify at the trial court’s suppression hearin g; (3) appellate counsel was in effective in conceding the legality of the stop; (4) the state failed to prove all ele ments beyond a reasonable doubt; and (5) the prosecutor made improper comments at closing that deprived Leslie of a fair trial. The ma gistrate 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 de ferential standards of § 2254( d); and the second, fourth, and fifth claims as pro cedurally barred by having been defaulted in state court. Leslie timely objected. The district court ultimately accepted the magistrate judge’s recommendations, denied th e § 2254 application, and den ied a COA. II. ANALYSIS To appeal, Leslie must obtain a C OA, which requires making “a s ubstantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). That demonstration “includes showing that reasonable jurists could d ebate whether (or, for3 that matter, agree that) the pet ition should have been resolved in a different manner or that the issues presented wer e adequate to deserve encourage ment to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (i nternal quotation marks omitted). For claims denied on the merits, Leslie “must demons trate that reasonable jurists would find the district c ourt’s assessment of the const itutional claims debatable or wrong.” Id. But for claims denied on pro cedural grounds, Leslie must show not only that rea sonable jurists could debate “whether the petition states a valid claim of the denial of a consti tutional right,” but also that r easonable jurists could debate “whether the district c ourt was correct in its procedura l ruling.” Id. A. First Claim – Fourth Amendment Violations Leslie’s first claim alleged F ourth Amendment violations with r egard to the traffic stop. When Leslie chall enged the stop in the state tri al 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 c ourt held the claim was precluded by Stone , which bars federal habeas claims concerning Fourth Amendment violations s o long as “the State has provided an oppo rtunity 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 suppr essed the cocaine. Leslie was able to argue his Four th Amendment claims both befor e the trial court and before the OCCA, and th e state courts considered his challenges under the appropriate law. Thus, he had a full and fair opportunity to l itigate 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 th is court, Leslie reiterates th at the state court proceedings do not satisfy Stone because they were incorrectly decided. But the opportunity for full and fair l itigation 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 re aching these conclusions, but that is not the question before us. The quest ion is whether he had a full and fair opportunity to pres ent his Fourth Amendment claim s in state court; he undoubtedly did.”). Because no r easonable jurist could debate the district court’s application of Stone to this claim, we deny a COA. B. Third Claim – Ineffective As sistance of Appellate Counsel 1. Habeas Standards Because the state courts addresse d the merits of Leslie’s clai m that his appellate counsel was ineffectiv e, the federal courts review th e 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 contra ry to, or involved an unreasonable application of, clear ly established Federal law, a s determined by the Supreme Court of the United Stat es” or (2) “was based on an unr easonable determination of the facts in li ght of the evidence presented i n the State court proceeding.” 28 U.S.C. § 2254(d).5 Under § 2254(d)(1), a state-cour t decision is contrary to Supr eme Court precedent “if the state court a rrives at a conclusion opposite to that reached by [the Supreme] Court on a question of l aw or if the state court decid es a case differently than [the Supreme] Court has on a set of materially indistingui shable facts.” Williams v. Taylor , 529 U.S. 362, 412-13 (2000). A nd a state court unreasonably applies Supreme Court precedent if it “identifies the correct g overning legal principle from [the] Court’s decisions but unreasonably applies that prin ciple 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 unreas onable application of [the] Cou rt’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-co urt factual determination is no t unreasonable merely because the federal habea s court would have reached a di fferent 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 defer ence. If reasonable minds reviewing the record mightdisagree about the finding in question, on habeas review that does not suffice to s upersede the trial court’s det ermination.” Brumfield v. Cain , 135 S. Ct. 2269, 2277 (2015) (br ackets, ellipse s, and interna l quotation marks omitted).6 2. Substantive Legal Standards For ineffective-assist ance claims, the clea rly established fede ral law is Strickland v. Washington , 466 U.S. 668 (1984). Under Strickland , a defendant must demonstrate both that counsel’s performance fell below an objec tive standard of reasonableness and th at counsel’s deficient performance resulte d in prejudice to his defense. Id. at 687. To overcome the strong presumption that counsel’s per formance was reasonable, the defendant mus t 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 reas onable probability that, but fo r counsel’s unprofessional errors, the resul t of the proceeding would have been different. A reasonable probability is a prob ability 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 app lication of the Strickland standard was unreasonable. Thi s is different from asking whet her defense counsel’s performance fell below Strickland ’s standard.” Harrington v. Richter , 562 U.S. 86, 101 (2011). “[A] st ate prisoner must show that th e 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 b eyond any possibility for fairminded disagreement.” Id. at 103.7 Leslie asserts that appellate c ounsel was constitutionally inef fective for conceding the initial validity o f the stop under Oklahoma prece dent that post-dated Leslie’s suppression hearing. A s the district court noted, und er the circumstances, it would not have been a viable st rategy for counsel to continue t o 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 Les lie had failed to show deficient performance or prejudi ce. We cannot conclude that an y reasonable jurist could debate whether the OCCA’s ruling was so lacking in justif ication that Leslie would qualify for relief under § 2254(d)(1). Likewise, no reas onable jurist could debate whether the OCCA unreasonably determined the facts in li ght of the record, so that Leslie would qualify for r elief under § 2254(d)(2). We th erefore deny a COA on Leslie’s claim of in effective assistance of appellate counsel. C. Remaining Claims Leslie raised his second, fourth , and fifth claims in his state post-conviction proceeding rather tha n in his direct appeal . The OCCA consider ed the claims to be waived because they could have b een 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 proce durally barred on federal habeas review because Leslie had failed to establish cause and prejudice to excuse th e default. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). Leslie did not address cause and p rejudice until his objections to the repor t and recommendation, when he argued for the first time that cause was e stablished by his appellate counsel’s perf ormance. The district8 court held that “[b]y not raisi ng [an] independent ineffectiven ess 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 tha t “[i]n this circuit , theories raised forthe first time in objections to the magistrate judg e’s report are deemed waived.” United States v. Garfinkle , 261 F.3d 1030, 1031 (10th Cir. 2001). Before this court, Les lie again argues that ineffectiv e assistance of appe llate counsel was cau se 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 challe nge to the district court’s findi ng of waiver. See COPE v. Kan. State Bd. of Educ. , 821 F.3d 1215, 1223 (10th Cir. 2016) (“Appellants do not raise this ar gument in their opening brief, and so it is waived.”). With Leslie having failed to chall enge the district court’s fin ding of waiver regarding cause and prejudice, no reasonable jurist could debate the deni al of relief on these claims. Accordingly, we deny a COA. D. District Court’s Fee Orders In orders dated May 30, 2018, a nd June 15, 2018, the district court granted Leslie leave to proceed without p repayment of fees and costs (I FP), see 28 U.S.C. § 1915(a)(1), and ordered partial payment of fees in installmen ts 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). A ccordingly, while the grant of IFP status stands, we vacate those portions of the Ma y 30, 2018, and June 28, 2018 , orders assessing partial payment of fees. 1 Notwithstanding this directiv e, Leslie is reminded that § 1915(a)(1) excuses only prepayment of fees; he remains l iable to pay the full amount of the appellate f iling and docketing fees. III. CONCLUSION Those portions of the district c ourt’s May 30, 2018, and June 15, 2018, orders assessing partial paym ent 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.