UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

TIMOTHY RAY BELVIN, 

Petitioner – Appellant, 

v. 

MIKE ADDISON, Warden, 

Respondent – Appellee. 

No. 13-7069 

(No. 6:10-CV-00145-RAW-KEW) 

(E.D. Okla.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges. 

Timothy Belvin , a state prisoner in Oklahoma, filed a pro se petition under 28 U.S.C. 

§ 2254 seeking habeas corpus relief from his convictions for six child sexual assault and 

exploitation charges on which he is serving a life sentence. In his petition, Belvin raised 

four grounds for relief: (1) a state statute-of-limitations bar; (2) insufficient evidence; (3) 

ineffective assistance of counsel; and (4) a violation of the Eighth Amendment. The 

district court adopted the magistrate’s report, denying Belvin relief on each ground. Now 

Belvin seeks a certificate of appealability (“COA”) from us to undo this decision. 

A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 28 

U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We may issue a 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule 

32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 4, 2014

Elisabeth A. Shumaker 

Clerk of Court
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COA only if the petitioner makes a “substantial showing of the denial of a constitutional 

right.” § 2253(c)(2). To make that showing, a petitioner must demonstrate that reasonable 

jurists could debate whether his petition should have been resolved differently. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). Even viewing the pleadings before us generously, 

Belvin does not give us reason to debate the district court’s careful analysis. Thus, we 

deny his request for a COA and dismiss this appeal. 

We first define our standard of review. Belvin argues that we should review his 

claims de novo because the state court rendered summary opinions without reasoned 

analysis. We’re governed here by the Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”). Generally, under AEDPA, we apply a deferential standard of review: 

petitioners are entitled to relief only if they can show that the state court’s resolution of 

their claims was “contrary to, or involved an unreasonable application of clearly 

established Federal law,” or represented “an unreasonable determination of the facts in 

light of the evidence presented.” 28 U.S.C. § 2254(d). But the deferential AEDPA 

standard does not apply where a state court fails to address a petitioner’s claim on the 

merits. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). 

Here, the state court did address the merits of Belvin’s claims, even if it did not give 

extensive reasoning for its conclusions. The claims Belvin presents in his § 2254 petition 

were addressed in two orders from the Oklahoma Court of Criminal Appeals (“OCCA”). 

The first was a summary opinion in response to Belvin’s direct appeal, in which the court 

offered a one-paragraph response to each of Belvin’s claims. The second was an order 

affirming denial of post-conviction relief, in which the OCCA quickly disposed of 
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Belvin’s ineffective-assistance-of-appellate-counsel claim. The OCCA’s orders certainly 

could have been more robust, but we apply AEDPA’s deferential standard of review if “a 

state court gives any indication that it addressed all of a petitioner’s federal 

constitutional” claims, “even where the state court eschews the far preferable treatment of 

explaining the underlying reasoning of the decision.” Le v. Mullin, 311 F.3d 1002, 1011 

n.2 (10th Cir. 2002) (internal quotation marks omitted). As such, the district court was 

right to apply AEDPA’s deferential standard of review to the state court decisions. See 

Aycox, 196 F.3d at 1177 (“Since we have an adjudication on the merits, we must consider 

what it means to defer to a decision which does not articulate a reasoned application of 

federal law to determined facts. We conclude . . . that we owe deference to the state 

court’s result, even if its reasoning is not expressly stated.”). Having set the standard of 

review, we address each of Belvin’s four grounds for relief. 

Ground 1: Statute of Limitations 

In his § 2254 petition, Belvin first argued that his convictions on Count 3 (Child 

Sexual Abuse) and Count 8 (Lewd Molestation) were barred by the applicable Oklahoma 

statutes of limitations. The district court rejected these claims in part because it said 

claims regarding the statute of limitations are state-law claims that are not cognizable on 

habeas review. As it applies to this case, we find that conclusion is beyond dispute. A 

petitioner cannot assert a claim under § 2254 for a violation of state procedure unless it 

infringes a specific federal constitutional protection. See Estelle v. McGuire, 502 U.S. 62, 

67–68 (1991); Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (“Federal habeas 

courts will not . . . review issues of purely state law.”). Belvin invokes his due process 
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rights, but a state’s misapplication of its own statute of limitations does not violate federal 

due process per se. See Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir. 2000); Erickson 

v. Secretary for Dept. of Corrections, 243 F. App’x 524, 527 (11th Cir. 2007); Wilson v. 

Mitchell, 250 F.3d 388, 396–97 (6th Cir. 2001); see also Burns v. Lafler, 328 F.Supp.2d 

711, 719 (E.D. Mich. 2004) (collecting cases). Even if a misapplication occurred here, 

which we do not find, Belvin gives us no reason to believe it violated his federal due 

process rights. Thus, we deny Belvin’s COA request on this issue. 

Ground 2: Insufficient Evidence 

Next, Belvin argued that the evidence was insufficient to sustain a conviction for 

Count 8 (Lewd Molestation). The applicable statute makes it a felony for any person to 

knowingly and intentionally “[l]ook upon, touch, maul, or feel the body or private parts 

of any child under sixteen (16) years of age in any lewd or lascivious manner” if the 

person is at least three years older than the victim. Okla. Stat. tit. 21, § 1123(A)(2); see 

Hilton v. Workman, No. 07-149, 2007 WL 2498786 *3 n.2 (W.D. Okla. Aug., 30, 2007) 

(enumerating the elements of § 1123(A)(2)). According to the Oklahoma Uniform Jury 

Instructions, the words “lewd” and “lascivious” have the same meaning and signify 

“conduct which is lustful and which evinces an eagerness for sexual indulgence.” Id. 

Belvin argues that the prosecution did not establish that he touched the victim in a 

lewd or lascivious manner. Among other things, the victim testified that Belvin touched 

her genital area with a vibrator when she was ten years old making her feel 

uncomfortable. Examining the evidence in the light most favorable to the prosecution, the 

magistrate’s report, which was adopted by the district court, found that “any rational trier 
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of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

R. vol. 1, at 152 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It thus 

concluded that “the [Oklahoma Court of Criminal Appeals] determination of this claim 

was not contrary to, or an unreasonable application of federal law, and the decision was 

not based on an unreasonable determination of the facts presented in the state court 

proceeding. 28 U.S.C. § 2254(d).” Id. We agree and deny Belvin’s COA request on this 

issue. 

Ground 3: Ineffective Assistance 

In his § 2254 petition, Belvin also argued that his trial counsel, Timothy Haney, 

rendered constitutionally ineffective assistance. He said Haney (1) wrongly advised him 

to waive his right to trial by jury, (2) failed to raise applicable statutes of limitations, and 

(3) failed to secure the written recantation of a state witness. We review this claim 

according to the familiar two-part test set forth in Strickland v. Washington, 466 U.S. 668 

(1984). First, “[a] petitioner must show that counsel’s performance was deficient.” 

Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must show that 

counsel’s deficiency “prejudiced the defense.” Id. The magistrate’s report agreed with the 

OCCA’s conclusion that Belvin had failed to establish both prongs on any one claim. 

First, the OCCA found that Belvin’s decision to waive a jury trial was not the result 

of ineffective assistance of counsel. The district court carefully reviewed the record and 

concluded that the OCCA’s decision on this issue was consistent with federal law and not 

based on an unreasonable determination of the facts. In his COA request, Belvin points to 

his own testimony at the evidentiary hearing that “he always wanted more than one 
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person to decide his fate and he did not understand the consequences of the waiver.” See

Petitioner’s Application for a Certificate of Appealability 6, Dec. 30, 2013, CM/ECF No. 

10136836. Then he goes on to argue that the deficiency prejudiced his defense. These 

arguments do not call into question the district court’s careful analysis. Thus, we deny 

Belvin’s COA request on this issue. 

Next, as to Belvin’s claim of ineffective assistance based on a failure to raise the 

statutes of limitations, the district court found that Belvin’s attorney was not ineffective 

because Count 3 (Child Sexual Abuse) and Count 8 (Lewd Molestation) were brought 

within their respective limitations periods and failure to raise a meritless argument does 

not constitute ineffective assistance of counsel. See Martin v. Kaiser, 907 F.2d 931, 936 

(10th Cir. 1990). We agree. 

As for Count 8, the state charged Belvin with Lewd Molestation of his niece 

occurring in 1996 to 1997. In 1997, the limitations period for Lewd Molestation was five 

years from discovery of the crime. Okla. Stat. tit. 22 § 152 (1997 Supp.). Lewd 

Molestation has been discovered “when any person (including the victim) other than the 

wrongdoer or someone in pari delicto with the wrongdoer has knowledge of both (i) the 

act and (ii) its criminal nature.” State v. Day, 882 P.2d 1096, 1098 (Okla. Crim. App. 

1994). 

Belvin offers no evidence in his § 2254 petition or on appeal showing when the 

criminal nature of the acts alleged in Count 8 was discovered. In his § 2254 petition, he 

simply asserted that the charge was untimely because the statute of limitations was five 

years. The OCCA found that because the limitations period ran from discovery (rather 
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than commission) of the crime, Belvin was not entitled to relief. The magistrate agreed. 

He accepted the state’s unrebutted assertion that the criminality of the acts was not 

discovered until 2004 when the victim became aware of the wrongfulness of Belvin’s 

actions and reported them to law enforcement. The criminal case against Belvin was 

initiated in 2004. 

Our review of the record indicates that, in fact, the victim testified that the alleged 

acts occurred in 2000, in which case the charge was brought within five years of the 

commission and discovery of the crime.1

 Regardless, Belvin offers no evidence showing 

that the state did not bring Count 8 within five years of the discovery of the criminal 

nature of the acts. As such, he has not shown that by failing to assert a statute-oflimitations defense as to Count 8 his counsel’s performance was deficient. 

As for Count 3, before November 1, 2000, the statute of limitations for Child Sexual 

Abuse was three years. See Cox v. State, 152 P.3d 244, 249 (Okla. Crim. App. 2006). The 

statute was amended on November 1, 2000, setting the limitations period at seven years. 

Id.

Count 3 alleged that Belvin required “E.P. to masturbate in the presence of the 

defendant on numerous occasions” between 1999 and 2004. R. vol. 2, at 60. E.P. was 

born on May 6, 1987, and he testified that the abuse began when he was 12 years old in a 

house on Mulberry Street. He said it also occurred in a house on Elm Street, which he 

moved to between eighth and ninth grade.

 1

 The victim of the lewd molestation testified that her birthdate was June 5, 1990. 

And she testified the lewd molestation occurred when she was ten years old. 
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The OCCA said that “there was evidence presented at trial that [Belvin] committed 

some of the acts charged in Count III after the effective date of the amended statute of 

limitations in [Okla. Stat. tit. 22] § 152(C).” R. vol. 1, at 102. The magistrate’s report 

found support for the OCCA’s conclusion. Assuming that the victim hadn’t skipped 

grades in school, it reasoned that the victim would have been 14 years old at the end of 

eighth grade, which would have been in 2001. As such, it concluded, Belvin committed 

some of the acts charged in Count 3 after November 1, 2000—the effective date of the 

amended statute of limitations. 

In his COA request, Belvin argues the district court’s finding that some of the abuse 

occurred in 2001 is wrong because it assumes evidence not in the record, namely, that the 

victim had a normal progression in school. But we’re reviewing for ineffective assistance 

of counsel, and we maintain a “strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. If the 

victim completed grades of school a year or more faster than her peers, and thus counsel 

should have raised a statute-of-limitations defense, it’s Belvin’s burden to provide that 

evidence. The district court’s reasonable assumption explains why Belvin’s attorney did 

not raise a statute-of-limitations defense and it explains why the state court concluded 

that “there was evidence presented at trial that [Belvin] committed some of the acts 

charged in Count III after the effective date of the amended statute of limitations.” R. vol. 

1, at 102. Without more from Belvin, we cannot say that the state court’s conclusion that 

Count 3 was timely brought is wrong, and thus, he has not shown that his counsel was 

ineffective for failing to raise the issue. 
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Finally, we agree with the district court that Belvin failed to show prejudice based on 

his counsel’s failure to secure a written recantation of state’s witness, E.P., who was 

Belvin’s victim as charged in multiple counts of conviction. To establish Strickland’s 

prejudice component, “[t]he defendant must show that there is 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.” 466 U.S. at 694. Here, the jury was presented with the fact that E.P. 

recanted, as well as his explanation for the recantation. Despite the recantation, the jury 

believed E.P.’s testimony about Belvin’s criminal acts. Belvin has not shown that putting 

the recantation in writing would have changed the outcome of the trial. 

Ground 4: The Eighth Amendment 

Finally, in his § 2254 petition, Belvin argued that the concurrent life sentences he 

received on Count 3 (Child Sexual Abuse) and Count 7 (Child Sexual Exploitation) were 

excessive, in violation of the Eighth Amendment. The magistrate’s report cited United 

States v. O’Driscoll, 761 F.2d 589, 599 (10th Cir. 1985), for the proposition that “[t]he 

imposition of a severe sentence, within legal limits, is not error.” R. vol. 1, at 157. Then it 

denied relief because it said Belvin’s sentences were within statutory limits, citing Okla. 

Stat. tit. 10, § 7115 (Child Sexual Abuse) and Okla. Stat. tit. 10, § 7115(G) (Child Sexual 

Exploitation). Belvin does not meaningfully address this reasoning in his application for a 

COA, and we discern no error. 
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Based on the foregoing, we deny a certificate of appealability and dismiss this 

appeal. 

ENTERED FOR THE COURT 

Gregory A. Phillips 

Circuit Judge