UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ CHRISTOPHER LEE HAAK, Petitioner - Appellant,

v. RICK WHITTEN, Ward en of the James Crabtree Correctional Center, Respondent - Appellee. No. 19-5029 (D.C. No. 4:15-CV -00689-JED-PJC) (N.D. Okla.)

_________________________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

_________________________________ Before CARSON , BALDOCK , and MURPHY , Circuit Judges.

_________________________________ Petitioner, Christopher Lee Haak, an Ok lahoma state prisone r appearing pro se, seeks a certificate of app ealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 petition for postc onviction relief. We deny Petitioner’s request. I. A jury convicted Petitioner of first- degree burglary and knowingly concealing stolen property. The tria l court imposed consecutive th irty-five-year and five-year prison terms. The Oklahoma Court of Crim inal Appeals (“OCCA”) affirmed Haak’s

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. Itmay be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 28, 2020 Christopher M. Wolpert Clerk of Court2 conviction and sentence. Pe titioner then sought postcon viction relief in Oklahoma state district court, which the district c ourt denied. The OCCA thereafter affirmed the district court’s denial of Petitioner’s application for postc onviction relief. Petitioner then filed an application for a writ of habeas corpus in federal district court under 28 U.S. C. § 2254. The district court denied Petitioner’s application and also declined to issue Petitioner a COA because he had not made a substantial showing of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2). Petitioner now asks us for a COA. II. A COA is a jurisdictional prerequisite to our review of a habeas application. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Co ckrell, 537 U.S. 322, 336 (2003). Under the Antiterrorism and Effective Death Pena lty Act (“AEDPA”), “[w]e will issue a COA ‘only if the applicant has made a s ubstantial showing of the denial of a constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 11 99 (10th Cir. 2009) (quoting 28 U.S.C. § 2253(c)(2 )). Under that standard, “the applicant must show ‘that reasonable jurists could debate whether (or, for th at matter, agree that) the petition should have been resolved in a diffe rent manner or that the issues presented were adequate to deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d 1075, 1078 (1 0th Cir. 2006) (quoting Slackv. McDaniel, 529 U.S. 473, 484 (2000)). Our “inquiry does not requi re full considerati on of the factual or legal bases adduced in support of the clai ms” but rather “an overview of the claims” and “a general assessment of their me rits.” Miller-El, 537 U.S. at 336.3 Under AEDPA, we may grant habeas relief to an individual in state custody on a claim that was adjudicated on the merits in state cour t only if the state court’s decision “was contrary to, or involved an unreasonable applic ation of, clearly established Federal law, as determined by the Supreme C ourt of the United States,” or “was based on an unreasonable determinati on of the facts in light of the evidence presented in the State court proceeding.” Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1)–(2)). III. In asking us for a COA, Petitioner asse rts six claims: (1) th at his convictions for burglary and concealing stol en property violate double je opardy; (2) that judicial bias deprived him of due pr ocess and a fair trial; (3) that the state trial judge abandoned impartiality when he defined “reasona ble doubt” during voir dire; (4) that plain error occurred when the prosecutor used voir dire to establish that Petitioner was guilty and when the prosecutor failed to correct a key witness’s false testimony; (5) that the cumulative effect of these errors deprived him of a fair trial; and (6) that Petitioner’s trial and appellate co unsel were ineffective at tr ial and on direct appeal. We address each contention in turn. A. Petitioner first claims that his convi ctions for first-degree burglary and knowingly concealing stolen property violate “the 5th Am endment right to be free from double jeopardy.” The Double Jeopar dy Clause protects against multiple criminal punishments for the same offense im posed in a single proceeding. Jones v.4 Thomas, 491 U.S. 376, 380–81 (1989). We must therefor e determine whether firstdegree burglary and knowingly concealing st olen property are the same offense. Under the Blockburger test, we inquire “whether each o ffense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment.” United States v. Dixon, 509 U.S. 688, 696 (1993). To prove first-degree burglary, the St ate must show that the defendant (1) broke into and (2) entered (3) the dwelling (4) of another (5) in which a human being was present (6) with the intent to steal or commit a crime th erein. Okla. Stat. tit. 21, § 1431, Oklahoma Uniform Jury Instruction-Criminal (OUJ I-CR) (2d) No. 5-12. To prove a defendant committed the crime of knowingly concealing stolen property, the State must establish that th e defendant (1) concealed or withheld (2) stolen personal property (3) from the owner, (4) knowing or believing the property had been stolen, (5) with the intent to perman ently deprive the owner of that property. Okla. Stat. tit. 21, § 1713; OUJI-CR (2d) No. 5-113. These crimes share no identical elements and are therefore not the same o ffense. Accordingly, we agree with the OCCA that Petitioner’s convictions do not violate “c onstitutional prohibitions against double jeopardy,” and do not grant a COA to Petitioner on this issue. B. Petitioner next claims that judicial bi as deprived him of his constitutional rights to due process and a fair trial. He alleges the “trial cour t actively participated in assisting the prosecution (1) by bringing to light potential weakness in the state’s case” and “(2) by participating in examin ation of witnesses to obtain favorable5 information for admission of a critical state’s exhibit.” “Due process guarantees ‘an absence of actual bias’ on the part of a judge .” Williams v. Penns ylvania, 136 S. Ct. 1899, 1905 (2016) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). In assessing judicial bias, we look at “w hether, as an objective matter , the average judge in his position is likely to be neutra l, or whether there is an unconstitutional potential for bias.” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881(2009)) (internal quotation ma rks omitted). Petitioner claims the tria l judge “acted as a second chair prosecutor” by telling the prosecutor that the gove rnment’s evidence on the “br eaking” element of burglary was “weak” and to ask the homeowner more questions. After the prosecutor finished his direct examination of the homeowner, the trial judge asked the prosecutor and defense counsel to approach for a bench conference outside the hearing of the jury. The trial judge stated that he did not “w ant to have to reopen the evidence and the breaking is exceedingly weak of breaking in. Now you’ve identified a latch that was on the floor” but “haven’t identi fied the condition of the door be fore this incident.” The prosecutor then elicited testimony about the condition of the door before the break in. The OCCA rejected this claim on direct app eal and determined that Petitioner failed to show “that his trial was unfairly conducte d or that the trial judge showed actual bias or acted with imperm issible partiality.” We find nothing objectively unreasonable about the OCCA’s d ecision. The trial court made these comments outside the hearing of the jury. Moreover, the trial court’s intervention was unnecessary. The homeowner had already testified that the latch had been on the6 front door before the home i nvasion, making it reasonable for the jury to infer that the men, including Petitioner, broke into the home through the front door. Thus, Petitioner cannot show that the trial court’s intervention tippe d the scales in favor of the prosecution. Accordingly, Petitione r does not demonstrate actual or apparent judicial bias. Petitioner additionally claims that th e trial judge aide d the prosecution by asking “foundation questioning” to get “admission of a critic al state’s exhibit.” In addressing Petitioner’s claims, the OCCA reasoned that “[a]lt hough the trial court asked questions of a State’s witness . . . the judge remained neutral and did not communicate any pers onal opinion regarding either guilt or innocence or witness credibility to the jury at any point during the trial.” Th e record reflects that the trial judge asked only neutral foundational questions, de monstrating good trial management rather than any bias. We find nothing unreasonabl e about the OCCA’s determinations. We th erefore deny a COA to Petitioner on this claim. C. In his third claim, Petitioner allege s the trial judge abandoned impartiality when he defined “reasonable doubt” dur ing voir dire. Petitioner specifically complains that the trial judge defined “reas onable doubt” when he stated “I can tell you and they will tell you, that doesn’t mean any doubt. The doubt has to be reasonable, but beyond that we can’t define it.” On direct appeal, the OCCA rejected Petitioner’s claim, finding “the trial c ourt did not define ‘reasonable doubt’ but properly sought to dispel commonly he ld attitudes and ascertain whether the7 prospective jurors would follow the tr ial court’s instructions on the law by contrasting ‘reasonable doubt’ with the con cept of ‘any doubt.’” Having reviewed the record, we find nothing objectively unr easonable about the OCCA’s decision, as the trial judge did not define “reasonable doubt.” Acco rdingly, we deny a COA on this issue. D. Petitioner next alleges two prosecutorial misconduct claims. First, Petitioner claims that the prosecutor improperly vouc hed for the integrity of law enforcement during voir dire by s uggesting that the State only a rrests and prosecutes people who are guilty. Second, Petitione r alleges that the prosecuto r failed to correct a key witness’s false testimony. The OCCA rejected both claims. To obtain habeas relief on a prosecuto rial misconduct claim, a petitioner must show that the prosecutor’s al leged misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The OCCA identified and applied the proper legal principle (i.e., the federal due process sta ndard) and determined that although the prosecutor made borderline st atements, such statements were not improper. After reviewing the record, we agree that the pr osecutor’s comments do not constitute “an overt sugge stion that the State only f iles charges against guilty people or a personal opinion concerning” Petitioner’s gu ilt. Accordingly, Petitioner fails to show that the O CCA’s determination was either contrary to or an unreasonable application of federal law.8 Petitioner also claims th at the prosecutor let his key witness, Caleb Wayne Bush, “testify falsely about his criminal past so as to fluff up hi s credibility.” Specifically, Petitioner contends that the OCCA’s ruling violates Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Supr eme Court “held that the Due Process Clause would be violated if the prosecuto r knowingly failed to correct perjured testimony in its case, even when the evidence went only to the credibility of the witness.” United States v. Garcia, 793 F.3d 1194, 1207 (10t h Cir. 2015) (citing Napue, 360 U.S. at 269). We explained th at a “Napue violation occurs when (1) a government witness committed perjury, (2) the prosecution knew the testimony to be false, and (3) the testimony was material.” Id. In support of his claim, Petitioner alleges that Bush lied when he testified that “he had no prior convictions for felonies or for ‘mis demeanors involving moral turpitude.’” Petitioner also claims that the “prosecution clearly knew” because “all prosecutors run the backgrounds of all their witnes ses.” The OCCA recognized that Petitioner asserted Napue clai ms, but found “nothing in the record on appeal” to support his allegations, and fu rther, that “Bush’s reliability was not determinative of [Petitioner’s] guilt or innocence.” 1 After reviewing th e record, we agree that

1 In support of his claim that Bush had two prior misdemeanor convictions, Petitioner references online Oklahoma stat e court dockets. The OCCA declined, however, to consider these references becau se Petitioner failed to make the dockets part of the appellate record. Our review “is limited to the record that was before the” OCCA. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). And even if we considered such references, they would only go to the first elemen t of a Napue claim: that the government witness committed perjury.9 Petitioner’s conclusory allegations fail to establish a Napue viol ation. The OCCA’s ruling was neither contrary to federal law, nor an unreas onable application of Napue, and its ruling was not based on an unreason able determination of the facts. Accordingly, we do not grant a COA on these prosecutorial misconduct claims. E. Petitioner contends that the cumulative e ffect of the trial e rrors alleged above deprived him of a fair trial. Because it found no actual errors , the OCCA rejected this claim. In the federal habeas context, a “cumulative-e rror analysis aggregates all errors found to be harmless and analyzes whether their cumula tive effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Brown v. Sirm ons, 515 F.3d 1072, 1097 (10t h Cir. 2008) (quoting United States v. Toles, 297 F.3d 95 9, 972 (10th Cir. 2002)). Like the OCCA, we find no actual errors to consider in the aggreg ate and thus deny a COA on this issue. D. In his last two claims, Petitioner allege s ineffective assistan ce of both trial and appellate counsel. Petitioner sp ecifically claims that tria l counsel was ineffective for failing to object at trial to the above-described errors and for refusing to let Petitioner testify at trial. The OCCA rejected th ese claims in his pos tconviction appeal. Petitioner alleges that the O CCA’s decision was clearly contrary to federal law because the Sixth Amendment provides crim inal defendants with the right to the effective assistance of trial and appellate counsel. U. S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686, 687 (1984). To es tablish a Sixth Amendment10 violation, a petitioner must show defi cient performance and resulting prejudice. Strickland, 466 U.S. at 687. We must dete rmine whether “counsel’s errors were so serious as to deprive the defenda nt of a fair trial.” Id. Petitioner claims that trial counsel perfo rmed deficiently by failing to object to trial errors and that this deficient performance caused the OCCA to review the alleged errors under the plain error standard . Although the OCCA reviewed for plain error, it found no actual erro rs on direct appeal. Peti tioner does not contest the reasonableness of the OCCA’s decision on th is point. Thus, we agree that Petitioner cannot show that trial counsel performed deficiently by faili ng to object to nonexistent errors, let alone show any resu lting prejudice. Petiti oner cannot establish with “reasonable probability” that, but for tr ial counsel’s failure to properly preserve these alleged errors, the result would have been different. Strickland, 466 U.S. at 688, 694. Petitioner additionally argues that trial counsel was ineffective for refusing to let him testify at trial. Th e state district court held an evidentiary hearing and found “credible, clear and co nvincing” trial counsel’s testim ony that she advised Petitioner not to testify, but that she left the deci sion up to Petitioner. Thus, the OCCA had an objectively reasonable basis for rejecting Petitioner’s claim. Petitioner’s conclusory allegation that trial counsel would not let him testify does not overcome the presumption of correctness that applies to a state court’s factual findings. 28 U.S.C. § 2254(e)(1) (stating that the “applicant shall have the burden of rebutting the11 presumption of correctness by clear and c onvincing evidence”). Accordingly, we do not grant a COA to Petitioner on his ineffective assistance of trial c ounsel claims. Petitioner likewise contends that appellate counsel was ineffective for: (1) failing to pursue an ineffective assist ance of trial counsel claim on appeal; (2) failing to make the Oklahoma docket sheets part of the appella te record; and (3) failing to argue that trial counsel was ine ffective for refusing to permit Petitioner to testify. The OCCA determin ed that Petitioner “failed to establish that appellate counsel’s performance was deficient or objectively unreasonable” and “failed to establish any resulting prejudice.” “A claim of appellate ineffectiveness ca n be based on counsel’s failure to raise a particular issue on appeal, although it is difficult to show deficient performance under those circumstances because counsel ‘need not (and should not) raise every nonfrivolous claim.’” Cargle v. Mu llin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). We “look to the merits of the omitted issue,” and, “if the issue is me ritless, its omission will not constitute deficient performance.” Id. Petitioner does not argue that appellate counsel failed to raise nonfrivolous issues. In stead, he claims that couns el performed deficiently by failing to adequately pres ent three issues on appeal. The OCCA found no actual errors with respect to these issues. Thus, the O CCA reasonably determined that Petitioner failed to show “a re asonable probability that appe llate counsel would have prevailed on direct appeal ha d he argued trial counsel was deficient.” We therefore deny a COA as to Petitioner’s appe llate ineffectiveness claim.12 IV. For the foregoing reasons, we deny Pe titioner’s application for a COA and dismiss this matter.

Entered for the Court

Joel M. Carson III Circuit Judge