UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ERIC TYRONE BRADFORD, 

 Petitioner - Appellant, 

v. 

CHRISTE QUICK, 

 Respondent - Appellee. 

No. 23-5075 

(D.C. No. 4:22-CV-00458-JFH-SH) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Eric Tyrone Bradford, an Oklahoma prisoner proceeding pro se,1

 filed an 

application in district court for a writ of habeas corpus under 28 U.S.C. § 2254. The 

district court dismissed the application because he had not exhausted his state court 

remedies, but it granted a certificate of appealability (COA) on one issue. Exercising 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 

submitted without oral argument. This order and judgment is not binding precedent, 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. 

1

 Because Mr. Bradford represents himself, we liberally construe his combined 

application for a COA and opening brief. See Hall v. Scott, 292 F.3d 1264, 1266 

(10th Cir. 2002). 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 11, 2024

Christopher M. Wolpert 

Clerk of Court

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jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm on that issue and deny a COA 

on the remaining issues. 

I. BACKGROUND 

 A. State Proceedings 

 Mr. Bradford was convicted of first degree murder and two firearm offenses in 

Oklahoma state court. On direct appeal, he raised two evidentiary challenges. The 

Oklahoma Court of Criminal Appeals (OCCA) rejected both and affirmed. Mr. Bradford 

did not seek further review. 

 Through counsel, Mr. Bradford filed an application for postconviction relief in 

state district court claiming that court lacked subject matter jurisdiction over his case 

under McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), because the crime occurred in Indian 

country and the victim was a member of the Muscogee (Creek) Nation.2

 See id. at 

2459-60 (holding that the territory in Oklahoma reserved for the Creek Nation since the 

19th century remains “‘Indian country’” for purposes of exclusive federal jurisdiction 

over “certain enumerated offenses” committed “within ‘the Indian country’” by an 

“‘Indian.’” (quoting 18 U.S.C. § 1153(a))). 

 In April 2021, the state district court granted the application for postconviction 

relief. But it stayed its order in light of a recent OCCA decision in another case involving 

2

 Mr. Bradford initially filed a pro se postconviction application in which he also 

alleged his mother and grandparents were members of the Creek Nation. He made no 

claim that his family were members of the Creek Nation in the amended application filed 

through counsel. 

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a McGirt issue.3

 Soon thereafter, Mr. Bradford was charged in a federal case with crimes 

stemming from the same conduct that gave rise to his state-court convictions. Then, in 

August 2021, the state district court lifted the stay and denied postconviction relief in 

light of State ex rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021), in 

which the OCCA held that McGirt does not apply retroactively to convictions that were 

final when McGirt was decided. Mr. Bradford’s federal prosecution was later dismissed. 

 Through counsel, Mr. Bradford appealed the denial of postconviction relief, 

claiming (1) Matloff was wrongly decided and the district court erred in concluding that 

McGirt does not apply retroactively; and (2) the district court abused its discretion in 

denying postconviction relief because under McGirt, the state court “did not, nor has it 

ever, had subject matter jurisdiction.” R., vol. 1 at 147, 157. The OCCA affirmed. 

 B. Federal Habeas Proceedings 

 After the state-court postconviction proceedings concluded, Mr. Bradford filed his 

pro se § 2254 application. He raised claims alleging ineffective assistance of trial and 

direct appeal counsel, prosecutorial misconduct, and “abuse of discretion” by the state 

district court. R., vol. 2 at 11. For the third claim, he alleged (1) the judge violated a 

state law and “overstep[ed] her jurisdictional boundaries” by referring him for federal 

prosecution, id., vol. 1 at 18; (2) the court “lost jurisdiction and was unable to make any 

3

 In the other case the OCCA had initially granted postconviction relief and 

invalidated on Indian-country jurisdiction grounds convictions that were final before 

McGirt was decided, but later recalled its mandate to give the case further consideration. 

See Bosse v. State, 499 P.3d 771, 774-75 (Okla. Crim. App. 2021) (describing procedural 

history and denying relief on Indian-country jurisdictional claim because McGirt does not 

apply retroactively). 

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subsequent ruling” after the federal case was filed, id., vol. 2 at 24; (3) the court violated 

his Fourth Amendment rights by continuing to exercise jurisdiction after “federal 

authorities participated in kidnapping” him and detained him on the federal charges, id.; 

and (4) the April 2021 order was “the correctly applied mandate and any subsequent 

ruling was res judicata.” id., vol. 1 at 17. 

 The district court granted Respondent’s motion to dismiss Mr. Bradford’s § 2254 

claims as unexhausted, noting his acknowledgment that he had not raised any of his 

§ 2254 claims in state court, see id., vol. 2 at 8-9, 10, 12.4

 The district court initially 

denied a COA on all issues, but after Mr. Bradford filed a notice of appeal and motion for 

COA, the court granted a COA on the following issue: 

whether the Petition was erroneously dismissed as to claim three because 

[Mr.] Bradford raised a properly exhausted claim that the state district court 

violated his Fourteenth Amendment right to due process by reinstating his 

criminal judgment and sentence after issuing a final judgment in April 2021 

granting his application for postconviction relief. 

Id., vol. 1 at 290-91. 

II. DISCUSSION 

A. Appeal Issue 

 We review de novo the dismissal of a habeas application for failure to exhaust 

state remedies. Allen v. Zavaras, 568 F.3d 1197, 1200 (10th Cir. 2009). Federal courts 

generally may not grant habeas relief to state prisoners unless all available state court 

4

 Respondent also sought dismissal of the application as untimely, but the district 

court declined to resolve that issue given its dismissal of the application on exhaustion 

grounds. Before this court, Respondent reiterates her time-bar arguments, but we also 

decline to address them. 

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remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement 

allows state courts “the opportunity to pass upon and correct alleged violations of its 

prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation 

marks omitted). The “petitioner bears the burden of demonstrating that he has exhausted 

his available state remedies.” McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009) 

(internal quotation marks omitted). 

 To satisfy the exhaustion requirement, a state prisoner must fairly present his 

claims to the state court before asserting them in federal court. See Fairchild v. 

Workman, 579 F.3d 1134, 1151 (10th Cir. 2009). “Fair presentation of a prisoner’s claim 

to the state courts means that the substance of the claim must be raised there.” Patton v. 

Mullin, 425 F.3d 788, 809 n.7 (10th Cir. 2005) (internal quotation marks omitted). The 

exhaustion “rule would serve no purpose if it could be satisfied by raising one claim in 

the state courts and another in the federal courts.” Picard v. Connor, 404 U.S. 270, 276 

(1971). Thus, a claim is exhausted only if the prisoner presented “the state courts with 

the same claim he urges upon the federal courts.” Id. 

 There is a “strong presumption in favor of requiring” exhaustion of state remedies. 

Castille v. Peoples, 489 U.S. 346, 349 (1989). However, the exhaustion requirement may 

be excused “if returning to state court to present any unexhausted claims would have 

been futile because either there is an absence of available State corrective process or 

circumstances exist that render such process ineffective to protect the rights of the 

applicant.” Fontenot v. Crow, 4 F.4th 982, 1020 (10th Cir. 2021) (internal quotation 

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marks omitted); see 28 U.S.C. § 2254(b)(1)(B). The petitioner has the burden of proving 

“either that state remedies were exhausted or that exhaustion would have been futile.” Id.

 In his postconviction appeal, Mr. Bradford argued that the state district court erred 

in concluding that McGirt did not apply retroactively to convictions, like his, that became 

final before McGirt was decided—he did not argue that the court violated his 

constitutional rights or otherwise erred by denying postconviction relief after initially 

granting relief. He thus did not present the OCCA “with the same claim he urges upon 

the federal courts.” Picard, 404 U.S. at 276. Because the claim he raised in federal court 

is not the same as the claims he raised in the state court proceedings, it was unexhausted. 

See id.; see also Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) 

(upholding dismissal of petitioner’s double-jeopardy challenge to his resentencing as 

unexhausted where his claim in state court was that the court abused its discretion in 

considering certain evidence at the resentencing hearing, a claim that did not “put the 

[state] courts on notice of the federal constitutional claim”). 

 Mr. Bradford explained that he did not exhaust this claim because he did not 

discover its factual basis until August 2021, when he received discovery and the trial 

record from the attorney appointed to represent him in a federal criminal case. To the 

extent this is a claim that his failure to exhaust was excused because exhaustion would 

have been futile, it fails. As the district court noted, Oklahoma’s postconviction 

procedures permit a state prisoner to seek postconviction relief if he claims there is 

“evidence of material facts, not previously presented and heard, that requires vacation of 

the conviction or sentence in the interest of justice.” Okla. Stat. tit. 22, § 1080(4). And 

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the fact that he had already filed an application for postconviction relief did not mean 

postconviction relief for this new claim was unavailable to him. See id. § 1086 

(providing that postconviction claims not raised in an “original, supplemental or amended 

application” may be raised in a subsequent application if “the court finds a ground for 

relief asserted which for sufficient reason was not asserted . . . in the prior application”). 

 We reject Mr. Bradford’s argument that exhausting his claim in state court would 

have been futile because that court would likely deny it on the merits. Futility on the 

merits does not excuse the failure to exhaust a claim in state court. See Engle v. Isaac, 

456 U.S. 107, 130 (1982) (addressing whether petitioner who had procedurally defaulted 

claim in state court could prove cause to excuse his default if his claim would have been 

futile on the merits in state court and concluding “he may not bypass the state courts 

simply because he thinks they will be unsympathetic to the claim”). “The rationale for 

this [exhaustion] requirement is that state courts will enforce the federal constitution as 

fully and fairly as a federal court,” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 

1992), and despite his disagreement with the state court’s handling of his case, 

Mr. Bradford was required to give the state court an opportunity to address his claim 

before raising it in federal court, see id. at 399. 

 Mr. Bradford’s pro se status also does not excuse the exhaustion requirement. He 

is correct that the district court was required to construe his filings liberally and to hold 

them to “less stringent standards” than pleadings drafted by lawyers. Haines v. Kerner, 

404 U.S. 519, 520 (1972). But the liberal construction rule does not relieve a pro se party 

of the duty to comply with the fundamental requirements of procedural rules and 

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substantive law—with respect to those requirements, pro se parties are held to the same 

standards as attorneys. See McNeil v. United States, 508 U.S. 106, 113 (1993); see also 

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]his 

court has repeatedly insisted that pro se parties follow the same rules of procedure that 

govern other litigants.” (internal quotation marks omitted)). Thus, pro se parties are not 

excused from satisfying the exhaustion requirement. See McNeil, 508 U.S. at 113.

 Finally, Mr. Bradford argues that because of the “se[]riousness of the legal 

violation,” and the risk of “a grave miscarriage of justice,” the district court should have 

deemed his unexhausted claims procedurally barred and addressed them on the merits. 

Aplt. Br. at 10. As we understand it, his argument is that the district court should have 

applied “anticipatory procedural bar to functionally transform [his] unexhausted claims 

into exhausted ones,” Fontenot, 4 F.4th at 1019, then consider his claim on the merits 

under an exception to the procedural bar. 

 Under the “procedural default” doctrine, a claim that an applicant presented in 

state court cannot be reviewed on the merits in a federal habeas action if it was precluded 

from review in the state court under an “independent and adequate state ground.” 

Coleman v. Thompson, 501 U.S. 722, 731–32, 735 n.1 (1991). “Anticipatory procedural 

bar occurs when the federal courts apply procedural bar to an unexhausted claim that 

would be procedurally barred under state law if the petitioner returned to state court to 

exhaust it.”5

 Fontenot, 4 F.4th at 1019 (internal quotation marks omitted). “If a federal 

5

 We note that the anticipatory procedural bar has typically been applied in cases 

involving both exhausted and unexhausted claims to obviate the need to dismiss the 

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court . . . determines that the petitioner’s unexhausted claims would now be procedurally 

barred in state court, there is a procedural default for purposes of federal habeas.” Id. 

(internal quotation marks omitted). A federal court may consider procedurally defaulted 

claims if the petitioner overcomes the default by demonstrating either cause for the 

default and prejudice from a violation of federal law, or that denying review would result 

in “a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. 

 To establish that the district court should have reached his claims by applying 

anticipatory procedural bar here, Mr. Bradford must demonstrate that an Oklahoma court 

would consider his claims barred under Oklahoma’s rule governing successive 

postconviction applications or some other state law and that he can overcome the 

resulting procedural default by demonstrating cause and prejudice or a fundamental 

miscarriage of justice. See Tryon v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (internal 

quotation marks omitted), cert. denied, No. 23-7085, 2024 WL 2709383 (U.S. May 28, 

2024). He has not done so. First, he has not shown the state court would consider his 

claims barred under Oklahoma’s rule governing successive postconviction applications or 

some other state law. Indeed, the district court’s conclusion that he failed to show that 

exhaustion would be futile was effectively a determination that the state court would not 

necessarily find the claims procedurally barred under Oklahoma law. See Fontenot, 

4 F.4th at 1017 (“It is futile for a petitioner to return to state post-conviction when state 

courts fail to provide substantive review of constitutional claims, as occurs when a state 

entire petition. See Fontenot, 4 F.4th at 1019. Here, all of Mr. Bradford’s claims were 

unexhausted. 

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routinely imposes a procedural bar on those claims which are being exhausted.” (brackets 

and internal quotation marks omitted)). Nor has he shown that if the district court had 

applied anticipatory procedural bar, he could overcome the resulting procedural default—

he did not even mention cause-and-prejudice, and although he made general assertions 

about a miscarriage of justice, see Aplt. Opening Br. at 11, 15-16; Reply Br. at 3, he has 

not made a credible showing that he is actually innocent, see McQuiggin v. Perkins, 

569 U.S. 383, 395 (2013) (holding, in the context of excusing AEDPA’s time limitations, 

that the miscarriage of justice exception applies only in “cases in which new evidence 

shows it is more likely than not that no reasonable juror would have convicted the 

petitioner”). 

 In sum, the district court correctly concluded that Mr. Bradford’s constitutional 

challenge to the denial of postconviction relief was unexhausted, and we find no error in 

its dismissal of the claim on that basis.6

 

B. Remaining Issues 

 Mr. Bradford does not expressly seek a COA as to his remaining claims. 

However, he argues the merits of some of those claims, and reading his briefs liberally, 

6

 We are not persuaded otherwise by Mr. Bradford’s claim that the district court 

exhibited bias against him by dismissing his claims as unexhausted while granting relief 

to another habeas petitioner who challenged the state district court’s order denying 

postconviction relief on a McGirt claim after initially granting relief and vacating her 

convictions. In that case, however, the petitioner raised her federal constitutional claim 

in state court and the OCCA decided it on the merits. See Graham v. White, No. 23-5069, 

2024 WL 2228601, at *2-4 (10th Cir. May 17, 2024). That is not the case here. In any 

event, we reversed the district court’s grant of habeas relief in Graham. See id. at *1, 8. 

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we construe his argument as requesting a COA to appeal the district court’s dismissal of 

those claims. 

 To obtain a COA Mr. Bradford must make “a substantial showing of the denial of 

a constitutional right,” 28 U.S.C. § 2253(c)(2), which includes showing “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). 

 To obtain a COA challenging the dismissal of his claims for failure to exhaust 

state court remedies, Mr. Bradford must show both “that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id. 

Mr. Bradford concedes that he did not raise his ineffective assistance of counsel, 

prosecutorial misconduct, and abuse of discretion claims in state court, and he has not 

shown that doing so would be futile. Reasonable jurists would not debate the correctness 

of the district court’s dismissal of his claims as unexhausted. 

CONCLUSION 

 We affirm the district court’s dismissal of the issue on which the district court 

granted a COA and we deny a COA as to the remaining issues. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge 

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