FILED

United States Court of Appeals

Tenth Circuit

April 7, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TWYLA TANNER,

Petitioner - Appellant,

v.

MIKE MULLIN, Warden,

Respondent - Appellee.

No. 08-7098

(E.D. Oklahoma)

(D.C. No. 6:06-CV-0232-RAW-KEW)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before LUCERO, MURPHY, and McCONNELL, Circuit Judges. 

Appellant, Twyla Tanner, seeks a certificate of appealability (“COA”) from

this court so she can appeal the district court’s denial of her 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because Tanner has not “made a substantial showing of the

denial of a constitutional right,” this court denies her request for a COA and

dismisses this appeal. Id. § 2253(c)(2). 

Tanner was convicted by an Oklahoma jury of embezzlement by bailee,

after former conviction of two or more felonies, and sentenced to forty-five years’

imprisonment. In her direct appeal to the Oklahoma Court of Criminal Appeals
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(“OCCA”), Tanner argued (1) the trial court erred when it refused to permit a

defense witness to testify, (2) extraneous information presented to the jury denied

her the right to a fair and impartial trial, (3) the evidence was insufficient to

convict her, (4) her sentence was excessive, and (5) cumulative error deprived her

of a fair trial. The OCCA modified Tanner’s sentence to twenty years but denied

relief on all other claims. Tanner filed an application for state post-conviction

relief which was denied. 

Tanner filed the instant § 2254 federal habeas petition on June 12, 2006,

asserting the same five claims she raised on direct appeal and an additional claim

that her conviction should be reversed because the statute under which she was

convicted has been repealed. Applying the standard set forth in the Antiterrorism

and Effective Death Penalty Act, the district court concluded the OCCA’s

adjudication of Tanner’s sufficiency-of-the-evidence and cumulative error claims

was not contrary to, nor an unreasonable application of clearly established federal

law. 28 U.S.C. § 2254(d). The court determined Tanner’s challenge to her

sentence was moot and the claim relating to the trial court’s discovery ruling did

not raise a federal constitutional question, Dockins v. Hines, 374 F.3d 935, 938

(10th Cir. 2004). Finally, the court concluded Tanner’s claim that the jury was

influenced by extraneous information and her claim relating to the repeal of the

statute she was convicted of violating were procedurally barred and Tanner failed

to show cause for the default and actual prejudice or that the failure to review her
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claims would result in a fundamental miscarriage of justice. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991). 

To be entitled to a COA, Tanner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, she must demonstrate “that reasonable jurists could debate whether (or,

for 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Tanner has satisfied her burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of her

claims. Miller-El at 338. Although Tanner need not demonstrate her appeal will

succeed to be entitled to a COA, she must “prove something more than the

absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted). 

This court has reviewed Tanner’s application for a COA and appellate

brief, the magistrate judge’s report and recommendation, the district court’s
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order, and the entire record on appeal pursuant to the framework set out by the

Supreme Court in Miller-El and concludes Tanner is not entitled to a COA. The

district court’s resolution of Tanner’s claims is not reasonably subject to debate

and the claims are not adequate to deserve further proceedings. 

Because Tanner has not “made a substantial showing of the denial of a

constitutional right,” she is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This

court denies Tanner’s request for a COA and dismisses this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge