UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MATTHEW SCOTT STRICKLAND, Petitioner - Appellant,

v. JIMMY MARTIN, Respondent - Appellee. No. 21-6051 (D.C. No. 5:17-CV-00843-HE) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HOLMES , KELLY , and McHUGH , Circuit Judges.

________________ _________________ A jury in Oklahoma state court found Applicant Matthew Sc ott Strickland guilty of three counts: (1) murder in the first degree, in violation of title 21, section 701.7 of the Oklahoma Statutes; (2) assault and battery with a deadly weapon, in violation of title 21, section 652 of the Oklahoma Statutes; a nd (3) use of body armor while committing a felony, in violation of title 21, section 1289.26 of the Oklahom a Statutes. At issue at the trial was whether Mr. Strickland acted in se lf-defense. The jury found Mr. Strickland guilty, and he received sentences of life impris onment, ten years’ incarceration, and five years’ incarceration, respectively.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 30, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 12 After unsuccessfully appealing his convic tions and seeking state post-conviction relief, Mr. Strickland applied for relief unde r 28 U.S.C. § 2554 in the United States District Court for the Western District of Ok lahoma. The district co urt denied his habeas petition. He now seeks a certificate of appealability (“COA”) from this court. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to a ppeal denial of relie f under § 2254). We deny his request and dismiss this matter.
I. PROCEDURAL BACKGROUND Mr. Strickland initially appealed his co nvictions to the Oklahoma Court of Criminal Appeals (“OCCA”). He raised tw o issues: (1) the evid ence presented was insufficient to support his co nvictions because the prosecu tion failed to prove beyond a reasonable doubt that he was not acting in se lf-defense; and (2) prosecutorial misconduct deprived him of a fair trial. Th e OCCA affirmed his convictions. Mr. Strickland then filed an application fo r post-conviction relief in the District Court of Oklahoma County, raising three issu es: (1) his appellate counsel was ineffective by failing to raise a claim that his trial counsel were ineffective for failing to investigate mental health records and otherwise conduc t a mental health investigation; (2) his appellate counsel was ineffective by failing to raise a claim that his trial counsel were ineffective for failing to conduct an in vestigation and pres ent expert testimony substantiating his account of th e incident; and (3) the cumu lative error denied him his constitutional rights. The day after he filed his application fo r post-conviction relief in the District Court of Oklahoma County, M r. Strickland filed a pro se habeas petition pursuant to Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 23 28 U.S.C. § 2254 in the United States Dist rict Court for the Western District of Oklahoma. He then sought and received a stay pending exhaustion of his state court remedies. After the District Court of Okla homa County denied his application for post-conviction relief, and the OCCA affirmed the denial, Mr. Strickland reopened his federal habeas case. Now represented by counse l, Mr. Strickland raised several issues in his briefing: (1) sufficiency of the evidence; (2) prosecutor ial misconduct; (3) ineffective assistance of appellate counsel in failing to assert two claims of ineffective assistance of trial counsel; and (4) cumulative error. A magi strate judge considered the issues and issued a Report and Recommendation, reco mmending the habeas petition be denied. Mr. Strickland objected to the report, but th e district court adopted it and denied the habeas petition and later denied a COA. Mr. Strickland now seeks a COA from this court.
II. DISCUSSION We may issue a COA “only if the applican t has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This st andard requires “a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should ha ve 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, 48 4 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983)). To put it simp ly, Mr. Strickland must show that the district court’s resolution of the constitutional claim was either “debatable or wrong.” Id. Under the Antiterrorism and Effective Death Penalty Ac t of 1996 (AEDPA), when a claim has been adjudicated on the merits in a state court, a federal court can grant Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 34 habeas relief only if the applicant establishe s that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2). This is a hi gh bar. But “[i]f a claim was not decided on the merits by the state courts (and is not procedurally barred), we may exercise our independent judgm ent in deciding the claim.” McCracken v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001). Under the § 2254(d) standard, a federal c ourt may not grant relief simply because it concludes in its “independent judgment that the relevant state-court decision applied clearly established law erroneously or incorre ctly,” but may grant relief only where “the ruling [is] ‘objectively unreasonable, not merely wrong; even clear error will not suffice.’” Gipson v. Jordan , 376 F.3d 1193, 1196 (1 0th Cir. 2004) (quoting Williams v. Taylor , 529 U.S. 362, 411 (2000)); Virginia v. LeBlanc , 137 S. Ct. 1726, 1728 (2017) (per curiam) (quoting Woods v. Donald , 575 U.S. 312, 316 (2015 )). Mr. Strickland must thus “show that the state court’s ruling was so lacking in justifica tion that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” LeBlanc , 137 S. Ct. at 1728 (ellipsis omitted) (quoting Harrington v. Richter , 562 U.S. 86, 102 (2011)). In addition to this deferential legal st andard, the AEDPA establishes a deferential standard of review for the state cour t’s factual findings. Specifically, the “AEDPA . . . mandates that state court factual findings ar e presumptively correct and may be rebutted Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 45 only by ‘clear and convincing evidence.’” Saiz v. Ortiz , 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U. S.C. § 2254(e)(1)). We must inco rporate the AEDPA’s deferential treatment of state court decisions into our co nsideration of Mr. Strickland’s request for a
COA. See Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Mr. Strickland seeks a COA on the followi ng grounds: (1) ther e was insufficient evidence to support his convic tions; (2) his appellate coun sel was ineffective in two ways; and (3) the accumulation of errors depr ived him of his cons titutional rights. We address each of Mr. Strickland’s arguments in turn, and ultimately deny his application for a COA.
A. Sufficiency of the Evidence First, Mr. Strickland argues there was insufficient evidence to support his convictions. He previously raised this claim as part of his direct appeal to the OCCA, which denied relief. He did not raise this claim again until his ha beas petition in the federal district court, where the cour t denied it as a ground for relief. To evaluate a sufficiency of the evidence claim, a federal court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elem ents of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979) (emphasis in the original). Ultimately, we must “accept the jury’s re solution of the evidence as long as it is wi thin the bounds of
reason.” Grubbs v. Hannigan , 982 F.2d 1483, 1487 (10th Ci r. 1993). And we must give deference to the findings of the re viewing state court—here, the OCCA. LeBlanc , 137 S.
Ct. at 1728. Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 56 After reviewing Mr. Strickland’s applica tion for a COA, his supporting appendix, and the relevant legal authority, we conclude for the same reas ons as did the district court that Mr. Strickland has not made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). While Mr. St rickland has shown there was evidence from which a jury could have conc luded he acted in self-defen se, there was also sufficient evidence to support the jury’s contrary finding that he was guilty of first-degree murder. The jury heard testimony from the surviving vi ctim, Ottie Sides, and was presented with evidence regarding Mr. Strick land’s failure to leave th e scene when he had the opportunity to do so, as well as the complicat ed history between the parties. While we agree with Mr. Strickland that a jury may have concluded he acted in self-defense, we will not disturb a state court jury’s decision by reweighing the evidence. Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996). Inst ead, we “accept the ju ry’s resolution of the evidence as long as it is within the bounds of reason.” Grubbs , 982 F.2d at 1487. Further, because our review is governed by AEDPA, it is doubly de ferential. Where the jury’s conviction was within the bounds of reason based on the evidence, the OCCA’s ruling was not wrong, much le ss “objectively unreasonable.” LeBlanc , 137 S. Ct. at 1728. We therefore deny a COA on this claim.
B. Ineffective Assistance of Counsel Mr. Strickland next argues his appellate counsel was ineffective for failing to assert two claims of ineffective assistance by his trial counsel in failing to: (1) investigate mental health records or otherwise condu ct a mental health investigation and (2) investigate and present evidence substan tiating Mr. Strickland’s version of events. Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 67 Ineffective assistance of counsel claims must be analyzed using the approach set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland , “a defendant must show both that his counse l’s performance fell below an objective standard of reasonableness and that the deficien t performance prejudiced the defense.” United States v. Holloway , 939 F.3d 1088, 1102 (10th Cir. 2019 ) (internal quotation marks omitted). There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland , 466 U.S. at 689. Because the OCCA previously denied thes e arguments, we consider whether that decision was “contrary to, or involved an un reasonable application o f, clearly established Federal law, as determined by the Supreme C ourt of the United States ,” or “was based on an unreasonable determination of the facts in light of the ev idence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2). Mr. Strickland must show the district court’s conclusion that the state court’s rulin g was not contrary to established law was “debatable or wrong.” Slack , 529 U.S. at 584. As to Mr. Strickland’s first argument—his appellate counsel’s failure to raise his trial counsel’s failure to investigate Mr. Stri ckland’s mental health records or conduct a mental health evaluation—the federal district court properly weig hed the evidence, the legal standard, and Mr. Strickland’s argumen ts before concluding the trial counsel’s failure to conduct a mental health investig ation was “well within the range of trial counsel’s reasonable professional judgment.” App. Vol. 1 at 223. This conclusion was not “debatable or wrong.” Slack , 529 U.S. at 584. While M r. Strickland argues a mental health evaluation and investigation would have benefited his defense, his trial counsel Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 78 chose to suppress his mental health records because they contained information regarding a “hit list” he had prepared of people he w ould like to kill—including his mother, one of the ultimate victims. The OCCA upheld the lower state court’s finding that “it was clearly sound strategy on the part of [Mr. Stri ckland’s] counsel to suppress evidence of his mental health treatment so as to prev ent his jury from hearing [Mr. Strickland’s] statements that he wanted to kill his mother.” App. Vol. 3 at 613. Because Mr. Strickland has failed to overcome the “strong presumpti on that counsel’s conduct falls within the wide range of reasonable professional assistan ce,” we cannot conclude the federal district court’s decision was “debatable or wrong.” Slack , 529 at 584. We therefore deny a COA on this claim. This also holds true on Mr. Strickland’s se cond ineffective assi stance of counsel argument—that his appellate co unsel should have raised his trial counsel’s failure to investigate and present eviden ce regarding his version of events. Mr. Strickland argues his trial counsel should have investigated and presented expert te stimony on his account that he did not fire the firs t shot. However, as the OCCA noted, the report submitted by Mr. Strickland in support of this claim conc ludes that the question of who fired first “cannot be determined from forensic analysis of the physical evidence in this case.” App. Vol. 3 at 615. This conclusion from Mr. Stri ckland’s proposed expert is the same conclusion reached by the state investigators who testified at trial. Therefore, no new evidence would have been presented to the jury on this issue, and the question of who fired first turned almost sole ly on the credibility of the su rviving victim’s testimony. Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 89 Under these circumstances, trial counsel’s choi ce not to pursue this line of defense was well within the bounds of professional judgment. Because we conclude Mr. Strickland’s in effective assistance of counsel claims fail, the OCCA’s determinatio n is not “obviously wrong.” Kayer , 141 S. Ct. at 520. Nor was the district court’s reso lution “debatable or wrong.” Slack , 529 U.S. at 484.
C. Cumulative Error Finally, Mr. Strickland argues the acc umulation of errors violated his constitutional rights. Having concluded there were no errors, we decline to grant a COA on this ground. 1 Hanson v. Sherrod , 797 F.3d 810, 853 (10th Ci r. 2015) (requiring at least two errors to engage in a cumulative error analysis).

1 In advancing his cumulative error argumen t, Mr. Strickland asks us to cumulate all errors in his § 2554 petition and requ est for a COA even though he acknowledged before the district court that the OCCA vi ewed his cumulative error argument as only encompassing his two ineffectiv e assistance of appellate counsel claims. Although the state initially raised an exha ustion defense relative to Mr. Strickland’s cumulative error argument, the magistrate judge did not address that defense. And the state did not object to the magistrate judge overlooking the exha ustion issue and reaching the merits of all claims in Mr. Strickland’s § 2254 petition de spite its potential mixed nature. Thus, the firm-waiver rule eliminates our need to consider whether Mr. Strickland properly exhausted the broa d cumulative error claim he presents in his request for a COA because the state did not properly preserve that affirmative defense for appellate review. See Morales-Fernandez v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005) (observing that Tenth Circuit “has adopted a firm waiver rule un der which a party who fails to make a timely objection to the magistrate judge’s finding s and recommendations waives appellate review of both factual and legal questions”); Gallegos v. Bravo , 437 F. App’x 624, 625– 26 (10th Cir. 2011) (unpublished) (applying fi rm waiver rule with in § 2254 context); see also Day v. McDonough , 547 U.S. 198, 199 (2006) (n oting that exhaustion of state remedies is an affirmative defense). Finally , where we conclude there are no errors to cumulate, it is unnecessary fo r us to determine whether the OCCA addressed the merits of the cumulative error claim Mr. Strickland pr esents in his request for a COA or if it overlooked the scope of this claim such th at AEDPA deference would not apply to a federal court’s consideration of the claim. Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 910 III. CONCLUSION For the foregoing reasons, we DENY M r. Strickland’s request for a COA and DISMISS this matter.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 21-6051 Document: 010110611730 Date Filed: 11/30/2021 Page: 10