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 CERTIFIC ATE OF APPEALABILITY *

Before HARTZ , GORSUCH , and PHILLIPS , Circuit Judges. Timothy Belvin , a state pris oner in Oklahoma, filed a pro se petition unde r 28 U.S.C. § 2254 seeking habeas corpus relief from hi s 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-lim itations bar; (2) insufficient evidence; (3) ineffective assistance of coun sel; and (4) a violation of the Eighth Amendment. The district court adopted the magistrate’s repor t, 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 th is court’s review of a § 2254 petition. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 336 (2 003). We may issue a

* This order is not binding precedent exce pt under the doctrines of law of the case, res judicata, and collateral estoppel.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- 2 - COA only if the petitioner makes a “substantial showing of th e 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 re solved differently. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). Even viewin g the pleadings befo re 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. Be lvin 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 Antiterro rism and Effective Death Penalty Act of 1996 (“AEDPA”). Generally, under AEDPA, we apply a deferential st andard 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 involve d an unreasonable app lication 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 cour t 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 conc lusions. The claims Belvin pr esents 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 qu ickly disposed of- 3 - Belvin’s ineffective-assistan ce-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 wher e the state court eschews the far preferable treatment of explaining the underlying re asoning of the decision.” Le v. Mullin , 311 F.3d 1002, 1011 n.2 (10th Cir. 2002) (interna l 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 ad judication 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 argue d that his convictions on Count 3 (Child Sexual Abuse) and Count 8 (Lewd Molestati on) were barred by the applicable Oklahoma statutes of limitations. The district court reje cted 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 c onclusion is beyond dispute. A petitioner cannot assert a claim under § 2254 fo r 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 Ci r. 2004) (“Federal habeas courts will not . . . review issues of purely state law.”). Belvin invokes his due process- 4 - 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 case s). Even if a misapplication occurred here, which we do not find, Belvin gives us no re ason to believe it violated his federal due process rights. Thus, we deny Belv in’s COA request on this issue. 

### Ground 2: Insufficient Evidence Next, Belvin argued that th e evidence was insufficient to sustain a conviction for Count 8 (Lewd Molestation). The applicable st atute 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 Ok lahoma Uniform Jury Instructions, the words “lewd” and “lasci vious” have the same meaning and signify “conduct which is lustful a nd which evinces an eagerne ss for sexual indulgence.” Id. Belvin argues that the pros ecution did not estab lish that he touched the victim in a lewd or lascivious manner. Am ong other things, the victim te stified that Belvin touched her genital area with a vibrator when she was ten years old making her feel uncomfortable. Examining the evid ence in the light most favorable to the prosecution, the magistrate’s report, which was adopted by the di strict court, found that “any rational trier- 5 - of fact could have found the essential elemen ts 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 app lication of federal law, and the decision was not based on an unreasonable de termination 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 ju ry, (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 tw o-part test set forth in Strickland v. Washington , 466 U.S. 668 (1984). First, “[a] petitioner must show th at counsel’s performance was deficient.” Wiggins v. Smith , 539 U.S. 510, 521 (2003). Seco nd, a petitioner must show that counsel’s deficiency “p rejudiced the defense.” Id. The magistrate’s report agreed with the OCCA’s conclusion that Belvin had failed to establish both prong s on any one claim. First, the OCCA found that Belvin’s decision to waive a jury tria l was not the result of ineffective assistance of counsel. The distri ct court carefully revi ewed the record and concluded that the OCCA’s decision on this i ssue was consistent with federal law and not based on an unreasonable determin ation of the facts. In his COA request, Belvin points to his own testimony at the evidentiary hearing that “he always wanted more than one- 6 - person to decide his fate a nd 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 th e deficiency prejudiced his defense. These arguments do not call into question the distri ct 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 fou nd that Belvin’s attorney was not ineffective because Count 3 (Child Sexual Abuse) and Count 8 (Lewd Molestation) were brought within their respectiv e 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 Belv in 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 discovere d “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 a lleged in Count 8 was discovere d. In his § 2254 petition, he simply asserted that the char ge was untimely because the statute of limitations was five years. The OCCA found that because the li mitations period ran fr om discovery (rather- 7 - than commission) of the crime, Belvin was not entitled to re lief. The magistrate agreed. He accepted the state’s unrebutted assertion th at 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 enforcemen t. 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 whic h 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 Co unt 8 within five years of the discovery of the criminal nature of the acts. As such, he has not sh own 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 masturba te in the presence of the defendant on numerous occasio ns” between 1999 and 2004. R. vol. 2, at 60. E.P. was born on May 6, 1987, a nd he testified that the abuse bega n when he was 12 years old in a house on Mulberry Street. He said it also occurred in a ho use on Elm Street, which he moved to between eighth and ninth grade.

1 The victim of the lewd molestation tes tified that her birthdate was June 5, 1990. And she testified the lewd molestation occurred when she was ten years old.- 8 - The OCCA said that “there was evidence presented at tr ial that [Belvin] committed some of the acts charged in Count III after th e 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. A ssuming that the victim hadn’t skipped grades in school, it reasoned that the victim would have been 14 y ears 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 No vember 1, 2000—the effective date of the amended statute of limitations. In his COA request, Belvin argues the distri ct court’s finding that some of the abuse occurred in 2001 is wrong because it assumes ev idence not in the reco rd, 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 counse l’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 Belv in’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 a nd 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 ef fective date of the amended st atute of limitations.” R. vol. 1, at 102. Without more from Be lvin, we cannot say that the state court’s conclusion that Count 3 was timely brought is wrong, and t hus, he has not shown that his counsel was ineffective for failing to raise the issue.- 9 - Finally, we agree with the district court that Belvin failed to show prejudice based on his counsel’s failure to secure a written re cantation 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 unprofe ssional 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 wo uld have changed the ou tcome of the trial. 

### Ground 4: The Eighth Amendment Finally, in his § 2254 petition, Belvin argued that the c oncurrent life sentences he received on Count 3 (Child Se xual Abuse) and Count 7 (Child Sexual Exploitation) were excessive, in violation of the Eighth Am endment. 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, w ithin legal limits, is not error. ” R. vol. 1, at 157. Then it denied relief because it said Be lvin’s sentences were within statutory limits, citing Okla. Stat. tit. 10, § 7115 (Child Sexual Abuse) an d Okla. Stat. tit. 10, § 7115(G) (Child Sexual Exploitation). Belvin does not m eaningfully address this reas oning in his application for a COA, and we discern no error.- 10 - Based on the foregoing, we deny a certif icate of appealability and dismiss this appeal.

ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge