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 certificate of appealability 

(COA) to challenge a district court order that denied his 28 U.S.C. § 2254 petition for 

habeas relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny 

Harris’s application and dismiss this appeal. 

BACKGROUND

 One evening in November 2011, A.T. went hitchhiking near her home in Tulsa, 

Oklahoma. She soon accepted a ride from a man in “a green like Ford Explorer Jeep.” 

 

 This order is not binding precedent except under the doctrines of law of the case, 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 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 Court
2 

R., Vol. II at 356.1

 Instead of driving to her 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 hospital, where she underwent a rape exam and provided 

a description of her attacker and the vehicle he drove. 

 Police investigated, but they soon “exhausted all [their] leads.” Id. at 629. 

Consequently, they “inactivate[d] [A.T.’s case].” Id.

 Not long thereafter, in January 2012, police arrested Harris on rape charges in 

another case. They then began comparing the circumstances in that case to those in some 

of their inactivated cases, including A.T.’s case, and they found “similar[ities] in the 

[attacker’s] physical description[,] . . . in how the attacker first made contact with the 

victim, . . . [in] where the attacker took the victim,” id. at 630-31, and in “the method of 

the attack[s],” id. at 631. Further, the vehicle used in the attacks was similarly described 

as “[a] red Jeep and a dark green Jeep.” Id. Police obtained documents indicating that 

Harris had driven both a red Jeep and a green Jeep. 

 In February 2012, Detective Liz Eagan interviewed A.T., and showed her a photo 

lineup of six men, including Harris, as “possibilities.” Id. at 383. A.T. “immediately” 

could tell that four of the men were not her attacker. Id. at 384. She ultimately identified 

Harris, circling his photo and writing that she was “95 percent” sure he was her attacker. 

Id. at 384. She was not completely sure, however, because her attacker “was missing 

 1

 In citing the record, we will use the page designations created by this court’s 

CM/ECF system. 
3 

teeth,” and she “couldn’t see the side of the guy’s mouth” in the photo. Id. at 385; see 

also id. at 641-42. 

 Afterward, Detective Eagan obtained a search warrant to photograph Harris’s 

mouth. The resulting photos showed that Harris was “missing his two front top teeth.” 

Id. at 645. 

 Harris was charged with first-degree rape, with two or more prior felony 

convictions. His trial was bifurcated into guilt and penalty phases. During the guilt 

phase, A.T. identified Harris as her attacker, with “[o]ne hundred percent” certainty. Id.

at 395. Three other women, “H.W., D.C. and S.G.,” testified that Harris had sexually 

assaulted them “within three 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 to the 

penalty phase. 

 There, based on evidence that Harris had prior felony convictions for sexual 

assault and aggravated robbery, the prosecutor asked the jury to 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 raped by Harris. The jury recommended life without parole 

and the trial court imposed that sentence. 

 Harris appealed to the Oklahoma Court of Criminal Appeals (OCCA), arguing that 

(1) the trial court erred by admitting the testimony of Harris’s three other victims; (2) the 

prosecutor committed misconduct during penalty-phase closing arguments; (3) defense 

counsel rendered ineffective assistance by not objecting to the testimony from the other 
4 

victims, not contesting A.T.’s photo lineup and in-court identifications, and not objecting 

to the prosecutor’s penalty-phase arguments; and (4) insufficient evidence supported his 

conviction. The OCCA affirmed. 

 Harris then sought federal habeas relief. Unsuccessful, he now requests a COA to 

appeal. 

DISCUSSION

I. Standards of Review 

 The issuance of a COA is a jurisdictional prerequisite to an appeal 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 substantial showing of the denial of a constitutional right,” 

28 U.S.C. § 2253(c)(2), such “that reasonable jurists could debate whether . . . the 

petition should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473, 

484 (2000) (internal quotation marks omitted). And where the district court has denied a 

habeas claim on procedural grounds, Harris must show not only the denial of a 

constitutional right, but also “that jurists of reason would find 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 Effective Death Penalty Act 

(AEDPA). See Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). Under 

AEDPA, a federal court may grant habeas relief only if the state court’s decision “was 

contrary to, or involved an unreasonable application of, clearly established Federal law, 
5 

as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or 

“was based on an unreasonable determination of the facts in light 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 probative value of the 

evidence against its prejudicial effect, in violation of Oklahoma law and federal 

due-process law. The OCCA reviewed 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 perhaps 

the most important factual issue at trial, and there were clearly significant 

similarities between the rape of A.T. and the rapes of the other three 

victims. . . .

 . . . The [trial] court was conscientious and issued proper instructions 

concerning the propensity evidence to limit its prejudicial impact. The 

evidence was offered generally to provide a link to the identity of A.T.’s 

attacker rather than as distinctive or signature evidence. The evidence was 

undoubtedly relevant and the purpose for introducing the evidence was 

proper. 

R., Vol. I at 35-36 (footnote omitted). The district court concluded that the OCCA did 

not unreasonably apply federal due-process law. 

 Initially, we point out that “federal habeas review is not available to correct state 

law evidentiary errors. . . . [A habeas petitioner] is entitled to relief only if an alleged 

state-law error was so grossly prejudicial that it fatally infected the trial and denied the 
6 

fundamental fairness that is the essence of due process.” Hooks v. Workman, 689 F.3d 

1148, 1180 (10th Cir. 2012) (brackets and internal quotation marks omitted). Thus, we 

proceed to the due-process component of Harris’s evidentiary claim. 

 As the OCCA pointed out, testimony from H.W., D.C., and S.G. was necessary to 

provide a link to the identity of A.T.’s attacker and the evidence was confined by proper 

instructions. Thus, the evidence was not grossly prejudicial. The district court found no 

unreasonable application of federal law, and Harris offers no cogent argument as to the 

debatability of that determination. 

III. Prosecutorial Misconduct

 On direct appeal, Harris claimed that during penalty-phase closing arguments, the 

prosecutor “inappropriately appealed for a verdict and punishment based on sympathy” 

by asking the jury to consider the rape’s ongoing effect on A.T. R., Vol. I at 218. The 

OCCA reviewed Harris’s claim for plain error, given the lack of an objection, and it 

found no error. Specifically, the OCCA framed the claim as whether Harris was denied a 

fair and reliable sentencing, and then concluded he was not, because the prosecutor’s 

comments were acceptable. 

 In the federal habeas proceedings, Harris repeated that claim and sought to add 

that the prosecutor submitted evidence in the penalty phase that confused the issues and 

did not support a crime. The district court first found that Harris’s new claims were 

procedurally barred. Then, the district court found it was not unreasonable for the OCCA 

to reject Harris’s sympathy argument, given that the prosecutor’s comments “spoke to a 
7 

topic within the realm of common knowledge and did not render [Harris’s] trial 

fundamentally unfair.” Id. at 396. 

 Harris has not demonstrated that a COA is warranted. In regard to the 

prosecutor’s comment that the rape would continue to affect A.T., that comment neither 

“infringe[s] o[n] a specific constitutional right,” Underwood v. Royal, 894 F.3d 1154, 

1167 (10th Cir. 2018) (internal quotation marks omitted), nor rises to a level of 

“egregious[ness] that . . . renders [Harris’s sentencing] fundamentally 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, incorporated 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 hundred percent” confident in her identification of Harris 

because “[t]here is a connection that doesn’t ever go away[,]” and “[i]t’s a bond you 

don’t ever want to have with somebody”). 

 As for Harris’s misconduct claims that were not exhausted in the OCCA, the 

district court aptly noted that the resulting procedural bar could 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. 2014) (observing that an anticipatory procedural 

bar arises against unexhausted claims “that would be procedurally barred under state law 

if the petitioner returned to state court to exhaust [them],” and that a federal court may 

consider such claims only “if the prisoner has alleged sufficient cause for failing to raise 

the claim and resulting prejudice,” or “if denying review would result in a fundamental 

miscarriage of justice because the petitioner has made a credible showing of actual 
8 

innocence” (internal quotation marks omitted)). Although Harris sought to overcome the 

bar by claiming that he received ineffective assistance of appellate counsel and that he is 

innocent, the district court’s rejection of those grounds is not debatable. 

 First, in order for ineffective appellate assistance to overcome 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, by relying on documents indicating: (1) he

possessed blue and red Jeeps, whereas A.T. described a green Jeep; and (2) he was 

excluded as a DNA contributor in a sexual-assault case not involving any of the four 

women who identified him in this case. These documents do not show actual innocence. 

See id. at 1232 (stating that the petitioner’s “new evidence must be sufficient to show that 

it is more likely than not that no reasonable juror would have convicted [him]” (internal 

quotation marks omitted)). Specifically, the four women victims in this case similarly 

described Harris’s Jeep as either red or green, and the prosecutor introduced evidence 

connecting Harris to Jeeps of both colors. And most significantly, A.T. confidently 

identified Harris as her attacker, both in the photo lineup and at trial, and the three other 

victims bolstered A.T.’s identification. 

IV. Ineffective Assistance of Trial Counsel 

 On direct appeal, Harris argued that trial counsel was ineffective by (1) not 

objecting to prosecutorial misconduct and the admission of testimony from H.W., D.C., 

and S.G.; and (2) not arguing that the photo lineup was so “impermissibly suggestive” as 

to require the exclusion of A.T’s pre-trial and in-court identifications of Harris as her 
9 

attacker. R., Vol. I at 220-21. The OCCA rejected the first component of Harris’s 

ineffectiveness claim on the ground that it had found no prosecutorial misconduct and no 

error in the admission of testimony. As to the second component of ineffectiveness, the 

OCCA again focused on the merits of the underlying claim. Specifically, it reviewed the 

photo lineup and found it was not impermissibly suggestive because “[t]he men depicted 

each have many of the characteristics fitting the description provided by A.T.” Id. at 40. 

And even if it was impermissibly suggestive, the OCCA stated, the photo lineup did not 

taint A.T.’s in-court identification, which the OCCA found “reliable under the totality of 

the circumstances.” Id. Accordingly, the OCCA rejected Harris’s ineffective-assistance 

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, Harris repeated these claims and attempted to 

advance new claims concerning defense counsel’s investigation and presentation of 

evidence. The district court confined its habeas review to the ineffective-assistance 

claims presented to the OCCA. That decision is not debatable for the same reasons we 

identified above regarding Harris’s attempt to advance unexhausted prosecutorialmisconduct arguments. 

 Turning to Harris’s exhausted claims, the district court determined that the OCCA 

did not unreasonably apply Strickland insofar as defense counsel failed to object to the 

prosecutor’s penalty-phase statement and the admission of testimony from H.W., D.C., 

and S.G. This determination is not debatable. See Cannon v. Mullin, 383 F.3d 1152, 
10 

1162 (10th Cir. 2004) (finding no deficient performance in defense counsel’s failure to 

object when there was “no meritorious state-law objection available”). 

 As for defense counsel’s failure to challenge A.T.’s identifications of Harris, the 

district court’s rejection of that claim is also not debatable. Specifically, the OCCA 

concluded that the photo lineup was not impermissibly suggestive, 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 for the OCCA to reject Harris’s ineffective-assistance 

claim. Further, the OCCA determined that if the photo lineup was impermissibly 

suggestive and required a defense objection, Harris suffered no prejudice because A.T.’s 

in-court identification was independently reliable. In assessing that reliability, the OCCA 

applied the factors from Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (identifying 

factors to be considered when determining whether an in-court identification was tainted 

by a pre-trial confrontation: “the opportunity of the witness to view the criminal at the 

time of the crime, the witness’ degree of attention, the accuracy of his prior description of 

the criminal, the level of certainty demonstrated at the confrontation, and the time 

between the crime and the confrontation”). Specifically, the OCCA referenced “A.T.’s 

opportunity to observe her attacker, the degree of her attention, the accuracy of her prior 

 2

 In analyzing this issue, the OCCA applied the correct Supreme Court precedent. 

See Simmons v. United States, 390 U.S. 377, 383 (1968) (indicating that the suggestive 

nature of a photo lineup “must be evaluated in light of the totality of surrounding 

circumstances”). 
11 

identification and her certainty.” R., Vol. I at 40. Harris has not demonstrated that the 

OCCA either unreasonably applied Manson or unreasonably determined the facts 

governing the reliability of A.T.’s in-court identification. Thus, it was not unreasonable 

for the OCCA to conclude that Harris was not prejudiced by defense counsel’s failure to 

contest A.T.’s in-court identification 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 certain counsel’s performance had no effect on the outcome 

or whether it is possible a reasonable doubt might have been established if counsel acted 

differently,” but rather, “whether it is reasonably likely the result would have been 

different.” (internal quotation marks and citations omitted)). 

V. Sufficiency of the Evidence 

 In response to Harris’s claim that there was insufficient evidence to convict him, 

the OCCA concluded that “any rational trier of fact could have found beyond a 

reasonable doubt that Harris committed first degree rape based on the evidence 

presented.” R., Vol. I at 41-42. The federal district court determined that Harris “ha[d] 

failed to make the requisite showings under § 2254(d) to obtain habeas relief on this 

claim.” Id. at 402. 

 Given the strength of the prosecution’s case against Harris, the district court’s 

determination is not debatable. See Coleman v. Johnson, 566 U.S. 650, 651 (2012) 

(explaining that insufficient-evidence claims “face a high bar in federal habeas 

proceedings because they are subject to two layers of judicial deference[:]” (1) “A 

reviewing [state] court may set aside the jury’s verdict on the ground of insufficient 
12 

evidence only if no rational trier of fact could have agreed with the jury[;]” and (2) “a 

federal [habeas] court may not overturn a state court decision rejecting a sufficiency of 

the evidence challenge . . . [unless] the state court decision was objectively unreasonable” 

(internal quotation marks omitted)). 

CONCLUSION

 We dismiss this appeal. 

Entered for the Court 

Allison H. Eid 

Circuit Judge