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 Oklaho ma prisoner proceeding pro se, 1 filed an application in district court for a writ of ha beas corpus under 28 U.S.C. § 2254. The district court dismissed the application b ecause he had not exhausted his state court remedies, but it granted a certificate of a ppealability (COA) on on e issue. Exercising

* After examining the briefs and appella te 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 This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Bradford repr esents 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 Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 12 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 degr ee 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 la cked subject matter ju risdiction over his case under McGirt v. Oklahoma , 140 S. Ct. 2452 (2020), because the crime occurred in Indian country and the victim was a memb er of the Muscogee (Creek) Nation. 2 See id. at 2459-60 (holding that the terr itory in Oklahoma reserved fo r 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 postc onviction application in which he also alleged his mother and grandparents were me mbers of the Creek Nation. He made no claim that his family were members of the Creek Nation in the amen ded application filed through counsel. Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 23 a McGirt issue. 3 Soon thereafter, Mr. Bradford was ch arged in a federal case with crimes stemming from the same conduct that gave rise to his state-court co nvictions. 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 federa l 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 procee dings concluded, Mr. Bradford filed his pro se § 2254 application. He raised claims alleging ineffective assistance of trial and direct appeal counsel, prosec utorial misconduct, and “abuse of discretion” by the state district court. R., vol. 2 at 11. For the th ird claim, he alleged (1 ) the judge violated a state law and “overstep[ed] her jurisdicti onal boundaries” by refe rring him for federal prosecution, id. , vol. 1 at 18; (2) the court “lost ju risdiction and was unable to make any

3 In the other case the OC CA 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-c ountry jurisdictional claim because McGirt does not apply retroactively). Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 34 subsequent ruling” after th e federal case was filed, id. , vol. 2 at 24; (3) the court violated his Fourth Amendment rights by continuing to exercise ju risdiction after “federal authorities participated in kidnapping” him and detained him on the federal charges, id .; and (4) the April 2021 order was “the corre ctly 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 acknowled gment 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. Brad ford filed a notice of appeal and motion for COA, the court granted a CO A on the following issue: whether the Petition was e rroneously dismissed as to claim three because [Mr.] Bradford raised a properly exhauste d claim that the state district court violated his Fourteenth Amendment ri ght 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 reso lve that issue given its dismissal of the application on exhaustion grounds. Before this court, Respondent re iterates her time-bar arguments, but we also decline to address them. Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 45 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 burde n of demonstrating th at 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 as serting them in federal court. See Fairchild v. Workman , 579 F.3d 1134, 1151 (10th Cir. 2009). “F air presentation of a prisoner’s claim to the state courts means that the substanc e 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 satis fied 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 th e prisoner presented “the state courts with the same claim he urges upon the federal courts.” Id. There is a “strong presumptio n in favor of requiring” ex haustion of state remedies. Castille v. Peoples , 489 U.S. 346, 349 (1989). Howe ver, the exhaustion requirement may be excused “if returning to state court to present any unexhauste d claims would have been futile because eith er there is an absence of ava ilable State corrective process or circumstances exist that render such proce ss ineffective to protect the rights of the applicant.” Fontenot v. Crow , 4 F.4th 982, 1020 (10th Ci r. 2021) (internal quotation Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 56 marks omitted); see 28 U.S.C. § 2254(b)(1)(B). The petitioner has the burden of proving “either that state remedies we re exhausted or that exhaustion wo uld have been futile.” Id. In his postconviction appeal , Mr. Bradford argued that th e 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 de nying postconviction relief after initially granting relief. He thus did not present th e 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-je opardy challenge to his resentencing as unexhausted where his claim in state court wa s 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 th e federal constitutional claim”). Mr. Bradford explained that he did no t exhaust this claim because he did not discover its factual basis until August 2021, when he received di scovery and the trial record from the attorney appointed to represen t him in a federal crim inal case. To the extent this is a claim that his failure to exhaust was excused b ecause exhaustion would have been futile, it fails. As the distri ct court noted, Oklaho ma’s postconviction procedures permit a state prisoner to seek po stconviction relief if he claims there is “evidence of material facts, not previously pr esented and heard, that requires vacation of the conviction or sentence in th e interest of justice.” Okla . Stat. tit. 22, § 1080(4). And Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 67 the fact that he had already filed an app lication for postconviction relief did not mean postconviction relief for this new claim was unavailable to him. See id. § 1086 (providing that postconviction cl aims 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 suffici ent 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 procedur ally defaulted claim in state court could prove cause to excu se 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 thi nks they will be unsympathetic to the claim”). “The rationale for this [exhaustion] requirement is that state c ourts 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 stat e 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 c onstruction rule does not relieve a pro se party of the duty to comp ly with the fundamental require ments of procedural rules and Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 78 substantive law—with respect to those requirements, pro se pa rties 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 (10t h Cir. 2005) (“[T]his court has repeatedly insisted that pro se pa rties follow the same rules of procedure that govern other litigants.” (inter nal 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 becau se of the “se[]riousness of the legal violation,” and the risk of “a grave miscarriag e of justice,” the district court should have deemed his unexhausted claims procedurally barred and addre ssed them on the merits. Aplt. Br. at 10. As we understand it, his ar gument is that the district court should have applied “anticipatory procedural bar to func tionally 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 (1 991). “Anticipatory procedural bar occurs when the federal c ourts 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 quota tion marks omitted). “If a federal

5 We note that the anticipatory procedural bar has typically been applied in cases involving both exhausted and unexhausted cl aims to obviate the need to dismiss the Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 89 court . . . determines that the petitioner’s un exhausted claims would now be procedurally barred in state court, there is a procedural default for purposes of federal habeas.” Id. (internal quotation marks omitte d). A federal court may cons ider procedurally defaulted claims if the petitioner overcomes the defa ult by demonstrating either cause for the default and prejudice from a viol ation of federal law, or that denying review would result in “a fundamental misca rriage of justice.” Coleman , 501 U.S. at 750. To establish that the district court sh ould 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 pr ejudice or a fundamental miscarriage of justice. See Tryon v. Quick , 81 F.4th 1110, 1139 (1 0th 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 govern ing successive postconviction applications or some other state law. Indeed, the district c ourt’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 procedur ally 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. Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 910 routinely imposes a procedural bar on those cl aims which are being exhausted.” (brackets and internal quotation marks omitted)). Nor ha s 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 (20 13) (holding, in the context of excusing AEDPA’s time limitations, that the miscarriage of jus tice exception applies only in “cases in which new evidence shows it is more likel y than not that no reasonable juror would have convicted the petitioner”). In sum, the district court correctly c oncluded that Mr. Bradford’s constitutional challenge to the denial of postconviction re lief was unexhausted, a nd 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 t hose claims, and reading his briefs liberally,

6 We are not persuaded otherwise by Mr. Br adford’s claim that the district court exhibited bias against him by dismissing his claims as une xhausted while granting relief to another habeas petitioner who challenged the state dist rict court’s order denying postconviction relief on a McGirt claim after initially grantin g relief and vacating her convictions. In that case, however, the pe titioner 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. Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 1011 we construe his argument as requesting a COA to appeal the district court’s dismissal of those claims. To obtain a COA Mr. Bradfo rd 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 reso lved in a different manner or that the issues presented were ad equate to deserve encouragement to proceed further,” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (inter nal quotation marks omitted). To obtain a COA challenging the dismissa l of his claims for failure to exhaust state court remedies, Mr. Bradford must sh ow both “that jurists of reason would find it debatable whether the petition st ates a valid claim of the denial of a constitutional right and that jurists of reason woul d find it debatable whether the district court was correct in its procedural ruling.” Id. Mr. Bradford concedes that he did not rais e his ineffective assi stance of counsel, prosecutorial misconduct, and abuse of discre tion claims in state c ourt, and he has not shown that doing so would be futile. Reasonable jurists woul d not debate the correctness of the district court’s dismissal of his claims as unexhausted.
CONCLUSION We affirm the district court’s dismissa l 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 Appellate Case: 23-5075 Document: 010111063282 Date Filed: 06/11/2024 Page: 11