UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MICHAEL RAY HARRIS, Petitioner - Appellant,

v. JOE ALLBAUGH, Director, Respondent - Appellee. No. 18-5046 (D.C. No. 4:15-CV -00141-JHP-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before McHUGH , MORITZ , and EID , Circuit Judges.

________________ _________________ Michael Ray Harris, a pro se state prisoner, seeks a certific ate of appealability (COA) to challenge a district c ourt order that denied his 28 U. S.C. § 2254 petition for habeas relief. Exercising jurisd iction under 28 U.S.C. §§ 1291 and 2253(a), we deny Harris’s application and dismiss this appeal.
B ACKGROUND One evening in November 2011, A.T. went hitchhiking near her h ome in Tulsa, Oklahoma. She soon a ccepted a ride from a man in “a green like Ford Explorer Jeep.”

 This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. App. P . 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 9, 2019
Elisabeth A. Shumaker Clerk of Court2 R., Vol. II at 356. 1 Instead of driving to h er destination, the man drove her to a field near a water treatment facility and raped her. Afterward, he drove off. A.T. managed to contact her boyfriend and others , who brought her home and then summoned an ambulance. She was taken to a ho spital, where she underwent a rape exam and provided a description of her attacke r and the vehicle he drove. Police investigated, but they so on “exhausted all [their] lead s.” Id. at 629. Consequently, they “inactiv ate[d] [A.T.’s case].” Id. Not long thereafter, in January 2 012, police arrested Harris o n rape charges in another case. They then began c omparing the circumstances in t hat case to those in some of their inactivated cases, inc luding A.T.’s case, and they fou nd “similar[ities] in the [attacker’s] physical descripti on[,] . . . in how the attacker first made contact with the victim, . . . [in] where the a ttacker took the victim,” id. at 630-31, and in “the method of the attack[s],” id. at 631. Further, the vehicle use d in the attacks was similarl y described as “[a] red Jeep and a dark green Jeep.” Id. Police obtained docum ents indicating that Harris had driven both a red Jeep and a green Jeep. In February 2012, Detective Liz Eagan interviewed A.T., and sh owed her a photo lineup of six men, i ncluding Harris, as “possibilities.” Id. at 383. A.T. “immediately” could tell that four of the m en were not her attacker. Id. at 384. She ultimately identified Harris, circling his photo and wr iting that she was “95 percent ” sure he was her attacker. Id. at 384. She was not completel y sure, however, because her att acker “was missing

1 In citing the record, we will use the page designations create d by this court’s CM/ECF system.3 teeth,” and she “couldn’t see th e side of the guy’s mouth” in t he photo. Id. at 385; see also id. at 641-42. Afterward, Detective Eagan obtai ned a search warrant to photog raph Harris’s mouth. The resulting photos show ed that Harris was “missing hi s two front top teeth.” Id. at 645. Harris was charged with first- degree rape, with two or more pr ior felony convictions. His trial was bif urcated into gui lt and penalty p hases. During the guilt phase, A.T. identified Harris as h er attacker, w ith “[o]ne hund red percent” certainty. Id. at 395. Three other women, “H. W., D.C. and S.G.,” testified th at Harris had sexually assaulted them “within thr ee months of” A.T.’s rape. Id. , Vol. I at 32-33. “Each assault bore similarities to the attack on A.T., and each of the three women identified Harris as her attacker.” Id. at 33. The jury found Harris guilty, and the case proceeded t o the penalty phase. There, based on evidence that Harris had prior felony convicti ons for sexual assault and aggravated robbery, t he prosecutor asked the jury t o return a sentence of life without parole. Specifically, the prosecutor urged the jury to consider that A.T. would never be able to forget being ra ped by Harris. The jury recomm ended life without parole and the trial court imposed that sentence. Harris appealed to the Oklahoma Court of Criminal Appeals (OCC A), arguing that (1) the trial court erred by ad mitting the testimony of Harris’ s three other victims; (2) the prosecutor committed misconduct dur ing penalty-phase closing ar guments; (3) defense counsel rendered ineffective a ssistance by not objecting to the testimony from the other4 victims, not contesting A.T.’s p hoto lineup and in-court identi fications, and not objecting to the prosecutor’s penalty-phase arguments; and (4) insufficie nt evidence supported his conviction. The OCCA affirmed. Harris then sought federal ha beas relief. Unsuccessful, he no w requests a COA to appeal.
D ISCUSSION I. Standards of Review The issuance of a COA is a juri sdictional prerequisite to an a ppeal from the denial of a § 2254 habeas petition. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). To obtain a COA, Harris must make “a substan tial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such “that reasonable jurists could deb ate whether . . . the petition should have b een resolved in a different manner or tha t the issues presented were adequate to deserve encourag ement to proceed further,” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitted). And where the d istrict court has denied a habeas claim on procedural groun ds, Harris must show not only t he denial of a constitutional right, but also “t hat jurists of reason would fi nd it debatable whether the district court was correct in its procedural ruling.” Id. In determining whether to issue a COA, we must incorporate the deference for state court decisions required by the Antiterrorism and Effecti ve Death Penalty Act (AEDPA). See Davis v. McCollum , 798 F.3d 1317, 1319 (10th Cir. 2 015). Under AEDPA, a federal court may gran t habeas relief only if the stat e court’s decision “was contrary to, or invol ved an unreasonable ap plication of, clearl y established Federal law,5 as determined by the Supreme Cour t of the United States,” 28 U. S.C. § 2254(d)(1), or “was based on an unreasonable de termination of the facts in lig ht of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Finally, we construe Harris’s pro se filings liberally. See Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002). II. Propensity Evidence On direct appeal, Harris argued that the trial court erred by admitting the testimonies of H.W., D.C., and S.G . without balancing the proba tive value of the evidence against its prejudicial effect, in violation of Oklaho ma law and federal due-process law. The OCCA review ed Harris’s argument for plain error because he had not objected at trial, and it found no error at all: Whether [Harris] was in fact the man who raped A.T. was perhap s the most important factual issu e at trial, and there were clear ly significant similarities between the rape of A .T. and the rapes of the othe r three victims. . . . . . . The [trial] court was cons cientious and issued proper in structions concerning the propensity evide nce to limit its prejudicial imp act. The evidence was offered generally t o provide a link to the identit y of A.T.’s attacker rather than as distinc tive or signature evidence. The evidence was undoubtedly relevant and the purp ose for introducing the eviden ce was proper. R., Vol. I at 35-36 (footnote omitte d). The district court con cluded that the OCCA did not unreasonably apply federal due-process law. Initially, we point out that “f ederal habeas review is not ava ilable to correct state law evidentiary errors. . . . [A habeas petitioner] is entitle d to relief only if an alleged state-law error was so grossly prejudicial that it fatally infe cted the trial and denied the6 fundamental fairness that is th e essence of due process.” Hooks v. Workman , 689 F.3d 1148, 1180 (10th Cir. 2012) (brack ets and internal quotation ma rks omitted). Thus, we proceed to the due-process com ponent of Harris’s evidentiary cl aim. As the OCCA pointed out, tes timony from H.W., D.C., and S.G. w as necessary to provide a link to the identity o f A.T.’s attacker and the evide nce was confined by proper instructions. Thus, the evidenc e was not grossly prejudicial. The district court found no unreasonable application of federa l law, and Harris offers no c ogent argument as to the debatability of that determination. III. Prosecutorial Misconduct On direct appeal, Harris claime d that during penalty-phase clo sing arguments, the prosecutor “inappropriately appe aled for a verdict and punishme nt based on sympathy” by asking the jury to consider t he rape’s ongoing effect on A.T . R., Vol. I at 218. The OCCA reviewed Harris’s claim fo r plain error, giv en the lack of an objection, and it found no error. Specifically, the OCCA framed the claim as whe ther Harris was denied a fair and reliable sentencing, andthen concluded he was not, be cause the prosecutor’s comments were acceptable. In the federal habeas proceedin gs, Harris repeated that claim and sought to add that the prosecutor submitted ev idence in the penalty phase tha t confused the issues and did not support a crime. The dis trict court first found that H arris’s new claims were procedurally barred. Then, the district court found it was not unreasonable for the OCCA to reject Harris’s sympathy argu ment, given that the prosecutor ’s comments “spoke to a7 topic within the realm of comm on knowledge and did not render [ Harris’s] trial fundamentally unfair.” Id. at 396. Harris has not demonstrated tha t a COA is warranted. In regar d to the prosecutor’s comment that the ra pe would continue to affect A.T ., that comment neither “infringe[s] o[n] a specif ic constitutional right,” Underwood v. Royal , 894 F.3d 1154, 1167 (10th Cir. 2018) (internal qu otation marks omitted), nor r ises to a level of “egregious[ness] that . . . renders [Harris’s sentencing] funda mentally unfair” in violation of due process, Cummings v. Evans , 161 F.3d 610, 618 (10th Cir. 1998). Indeed, it was clear from A.T.’s own testimony, i ncorporated into the penalty phase from the guilt phase, that the rape was continuing to affect her. See R., Vol. II at 395-96 (A.T.’s testimony that she was “[o]ne hun dred percent” confident in her identification of Harris because “[t]here is a connectio n that doesn’t ever go away[,]” and “[i]t’s a bond you don’t ever want to h ave with somebody”). As for Harris’s misconduct claims that were not exhausted in t he OCCA, the district court aptly noted that the resulting procedural bar co uld be overcome only by a showing of cause and prejudice or a fundamental miscarriage of justice. See Frost v. Pryor , 749 F.3d 1212, 1231 (10th Cir. 2 014) (observing that an antic ipatory procedural bar arises against unexhausted claims “that would be procedural ly barred under state law if the petitioner returned to stat e court to exhaust [them],” a nd that a federal court may consider such claims only “if the prisoner has alleged sufficie nt cause for failing to raise the claim and resulting prejudic e,” or “if denying review would result in a fundamental miscarriage of justice because t he petitioner has made a credib le showing of actual8 innocence” (internal quotation marks omitted)). Although Harri s sought to overcome the bar by claiming that he received ineffective assistance of appe llate counsel and that he is innocent, the district court’s re jection of those grounds is no t debatable. First, in order for ineffective appellate assistance to overco me a procedural bar, such a claim must itself be exhausted, see Edwards v. Carpenter , 529 U.S. 446, 453 (2000), and here, it was not. Second, Harris failed to make “a credible showing of actual innocence,” Frost , 749 F.3d 1231-32, b y relying on documen ts indicating: (1) he possessed blue and red Jeeps, whe reas A.T. described a green Je ep; and (2) he was excluded as a DNA contributor in a sexual-assault case not invo lving any of the four women who identified him in thi s case. These documents do not show actual innocence. See id. at 1232 (stating that the petiti oner’s “new evidence must be s ufficient to show that it is more likely than not that no reasonable juror would have convicted [him]” (internal quotation marks omitted)). Sp ecifically, the four women victim s in this case similarly described Harris’s Jeep as eith er red or green, and the prosecu tor introduced evidence connecting Harris to Jeeps of bot h colors. And most significan tly, A.T. confidently identified Harris as her attacke r, both in the photo lineup and at trial, and the three other victims bolstered A.T.’s identification. IV. Ineffective Assistan ce of Trial Counsel On direct appeal, Harris argued that trial counsel was ineffec tive by (1) not objecting to prosecutorial misc onduct and the admission of test imony from H.W., D.C., and S.G.; and (2) not arguing that the photo lineup was so “imp ermissibly suggestive” as to require the exclusion of A.T’s pre-trial and in-court identi fications of Harris as her9 attacker. R., Vol. I at 220-21. The OCCA rejected the first c omponent of Harris’s ineffectiveness claim on the grou nd that it had found no prosec utorial misconduct and no error in the admission of testim ony. As to the second componen t of ineffectiveness, the OCCA again focused on the merits of the underlying claim. Spec ifically, it reviewed the photo lineup and found it was not impermissibly suggestive beca use “[t]he men depicted each have many of the characteris tics fitting the description p rovided by A.T.” Id. at 40. And even if it was impermissibl y suggestive, the OCCA stated, t he photo lineup did not taint A.T.’s in-court identifica tion, which the OCCA found “rel iable under the totality of the circumstances.” Id. Accordingly, the OCCA rejected H arris’s ineffective-assistanc e claims, citing Strickland v. Washington , 466 U.S. 668, 687 (1984 ) (explaining that for a claim of ineffective assistance to succeed, “the defendant must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense”). In his federal habeas petition, H arris repeated these claims a nd attempted to advance new claims con cerning defense counsel’s investigation a nd presentation of evidence. The district court co nfined its habeas review to the ineffective-assistance claims presented to the OCCA. That decision is not debatable f or the same reasons we identified above regarding Harris’ s attempt to adv ance unexhaus ted prosecutorialmisconduct arguments. Turning to Harris’s exhausted cl aims, the district court deter mined that the OCCA did not unreasonably apply Strickland insofar as defense counse l failed to object to the prosecutor’s penalty-phase state ment and the admission of testi mony from H.W., D.C., and S.G. This determina tion is not debatable. See Cannon v. Mullin , 383 F.3d 1152,10 1162 (10th Cir. 2004) (fi nding no deficient performance in defe nse counsel’s failure to object when there was “no merito rious state-law objection avail able”). As for defense counsel’s failure to challenge A.T.’s identific ations of Harris, the district court’s rejection of tha t claim is also not debatable. Specifically, the OCCA concluded that the photo lineup was not impermissibly suggestiv e, given the shared physical characteristics of the possible suspects. 2 Harris has not demonstrated that the OCCA’s conclusion resulted from an unreasonable application of federal law or an unreasonable determination of the facts. Thus, without a basis for defense counsel to object, it was not unreasonable fo r the OCCA to reject Harris’s ineffective-assistance claim. Further, the OCCA determ ined that if the photo lineup w as impermissibly suggestive and required a defense objection , Harris suffered no prejudice because A.T.’s in-court identification was i ndependently reliable. In assessi ng that reliability, the OCCA applied the factors from Manson v. Brathwaite , 432 U.S. 98, 114 (1977) (identifying factors to be considered when de termining whether an in-court i dentification was tainted by a pre-trial confrontation: “ the opportunity of the witness to view the criminal at the time of the crime, the witness’ d egree of attention, the accura cy of his prior description of the criminal, the level of certa inty demonstrated at the confro ntation, and the time between the crime and the conf rontation”). Specifically, the O CCA referenced “A.T.’s opportunity to observe her attack er, the degree of her attentio n, the accuracy of her prior

2 In analyzing this issue, the OCC A applied the correct Supreme Court precedent. See Simmons v. United States , 390 U.S. 377, 383 (1968) (i ndicating that the suggestive nature of a photo lineup “must be evaluated in light of the tot ality of surrounding circumstances”).11 identification and her certain ty.” R., Vol. I at 40. Harris h as not demonstrated that the OCCA either unreasonably applied Manson or unreasonably determined the facts governing the reliability of A.T .’s in-court identification. T hus, it was not unreasonable for the OCCA to conclude that Ha rris was not prejudiced by defe nse counsel’s failure to contest A.T.’s in-court identifi cation as tainted by the photo lineup. See Harrington v. Richter , 562 U.S. 86, 111 (2011) (“In assessing prejudice under Strickland , the question is not whether a court can be cer tain counsel’s performance had no effect on the outcome or whether it is possible a reas onable doubt might have been es tablished if counsel acted differently,” but rather, “whet her it is reasonably likely the result would have been different.” (internal quotation marks and citations omitted)). V. Sufficiency o f the Evidence In response to Harris’s claim th at there was insufficient evid ence to convict him, the OCCA concluded that “any ra tional trier of fact could have found beyond a reasonable doubt that Harris co mmitted first degree rape based on the evidence presented.” R., Vol. I at 41-42. The federal district court d etermined that Harris “ha[d] failed to make the requisite show ings under § 2254(d) to obtain habeas relief on this claim.” Id. at 402. Given the strength of the prose cution’s case against Harris, t he district court’s determination is not debatable. See Coleman v. Johnson , 566 U.S. 650, 651 (2012) (explaining that insufficient-ev idence claims “face a high bar in federal habeas proceedings because they are subj ect to two layers of judicial deference[:]” (1) “A reviewing [state] court may set aside the jury’s verdict on the ground of insufficient12 evidence only if no rational tr ier of fact could have agreed wi th the jury[;]” and (2) “a federal [habeas] court may not overturn a state court decision rejecting a sufficiency of the evidence challenge . . . [unles s] the state c ourt decision was objectively unreasonable” (internal quotation marks omitted)). C ONCLUSION We dismiss this appeal. Entered for the Court

Allison H. Eid Circuit Judge