Jenkins v. Bridges

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 29, 2025
• Docket: 24-5145
• Status: Unpublished

Opinion

Appellate Case: 24-5145 Document: 11-1 Date Filed: 05/29/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 29, 2025 _________________________________ Christopher M. Wolpert Clerk of Court BRANDON L. JENKINS,

Petitioner - Appellant,

v. No. 24-5145 (D.C. No. 4:22-CV-00036-GKF-JFJ) CARRIE BRIDGES, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, EID, and CARSON, Circuit Judges. _________________________________

Petitioner Brandon Jenkins, proceeding pro se, seeks a certificate of appealability

to challenge the district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus seeking relief from his drug trafficking and firearm possession convictions

in Oklahoma-state court. For the reasons below, we deny his request for a certificate.

I.

A Tulsa, Oklahoma police officer saw Petitioner commit two minor traffic

violations. Activating his siren and lights, the officer attempted to pull Petitioner over.

Petitioner declined to, and a low-speed chase followed. During the chase, Petitioner

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5145 Document: 11-1 Date Filed: 05/29/2025 Page: 2

threw two objects out of his passenger-side window. Petitioner eventually pulled over.

An officer arrested him for driving without a license after he admitted to doing so.

Searching the scene after the traffic stop, another officer found two objects a block apart

from each other on the same street down which Petitioner drove: a nine-millimeter pistol

and a bag of methamphetamine. The officer that found the pistol and methamphetamine

noticed that “the gun was warmer” than the outside temperature, and “was dry” despite

recent rain. The gun was loaded but inoperable and had scuff marks consistent with

being “thrown against concrete.”

An Oklahoma-state jury convicted Petitioner of firearm possession while

committing a felony and drug trafficking, among other crimes. After exhausting his state

appeals and filing two postconviction applications, Petitioner turned to federal court. He

argued in the Northern District of Oklahoma that the state jury lacked constitutionally

sufficient evidence to convict him and that the Supreme Court’s decision in McGirt v.

Oklahoma, 591 U.S. 894 (2020), forbade Oklahoma authorities from prosecuting him.

Neither argument persuaded the district court, which denied his habeas corpus petition

and refused him a certificate of appealability on either issue.

II.

To obtain a certificate of appealability, a habeas petitioner must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That

means “reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack

v. McDaniel, 529 U.S. 473, 484 (2000)). The district court ruling must be either

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“contrary to, or involve[] an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States” or “result[ ] in a decision that

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Harris v. Dinwiddie, 642 F.3d 902, 907 (10th

Cir. 2011) (quoting 28 U.S.C. § 2254(d)).

III.

Petitioner seeks to appeal only the district court’s ruling that jurists of reason

could disagree whether sufficient evidence existed for a jury to convict him of firearm

possession pursuant to a felony and drug trafficking. Petitioner advances two arguments

in favor of his position. First, he says “the state failed to prove that [he] had dominion or

control of the items found on the side of the road” because “the items found were not in

the location where [the officer] saw the items tossed from the vehicle.”1 Second, he

argues that reasonable jurists could debate whether the district court was correct that “the

inoperable pistol met the statutory definition of a pistol” because “it was a real pistol, not

an immitation [sic] firearm as defined in 21 O.S. § 1289.3, which talks about fake pistols

manufactured to appear real.” (Emphasis omitted.)

The Fourteenth Amendment’s due-process guarantee requires that “record

evidence [] reasonably support[s] a finding of guilt beyond a reasonable doubt” for a jury

1 Petitioner states the district court “never addressed this argument,” but he made it with respect to his firearm conviction only in his reply brief rather than in his petition itself. As “[t]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief,” the district court acted permissibly in not addressing the argument. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (quoting M.D. Mark, Inc. v. Kerr–McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009)). 3 Appellate Case: 24-5145 Document: 11-1 Date Filed: 05/29/2025 Page: 4

to convict a defendant of a crime. Jackson v. Virginia, 443 U.S. 307, 318 (1979). In

reviewing evidentiary insufficiency claims, a court must not “ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. at

318–19 (emphasis omitted) (quoting Woodby v. Immigr. & Naturalization Serv., 385

U.S. 276, 282 (1966)). Rather, it asks “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis omitted) (citing

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). In other words, “the court ‘must decide

whether there was sufficient evidence presented at trial for a reasonable jury, properly

instructed, to have found [the essential elements of the crime] beyond a reasonable

doubt.’” United States v. Simpkins, 90 F.4th 1312, 1315–16 (10th Cir. 2024) (emphasis

omitted) (quoting United States v. Wyatt, 964 F.3d 947, 951 (10th Cir. 2020)). To

succeed, therefore, Petitioner must show reasonable jurists could debate whether a

rational jury could convict him of his crimes.

Neither of Petitioner’s arguments meet this standard. First, enough evidence

existed for a reasonable jury to find that the two objects Plaintiff threw out his passenger-

side window were the bag of methamphetamine and the loaded but inoperable gun.

Petitioner challenges the evidentiary sufficiency of the “dominion or control” element of

both crimes for which he was convicted. We interpret this argument to be the same

constructive possession argument Petitioner made below. Under Oklahoma law

“[p]ossession itself means that the possessor has ‘dominion and control.’” Miller v.

State, 579 P.2d 200, 202 (Okla. Crim. App. 1978) (quoting Brown v. State, 481 P.2d 475,

4 Appellate Case: 24-5145 Document: 11-1 Date Filed: 05/29/2025 Page: 5

477 (Okla. Crim. App. 1971)). That means “[p]roof of knowing possession of

[prohibited substances and objects] is often solely circumstantial, and thus requires that

guilt be determined through a series of inferences.” Bivens v. State, 431 P.3d 985, 992

(Okla. Crim. App. 2018) (citing Johnson v. State, 764 P.2d 530, 532 (Okla. Crim. App.

1988)). Thus, “[e]ven in the absence of proof of possession and exclusive control,

constructive possession may still be proven if ‘there are additional independent factors

showing [the accused’s] knowledge and control.’” Id. (quoting Johnson, 764 P.2d at

532).

The jury heard testimony from the officer that pursued Petitioner stating that he

saw Petitioner throw two objects out of his passenger-side window. It also heard

testimony from the other officer stating that he found the bag of methamphetamine and

the loaded gun that became the basis of the prosecution’s case against Petitioner on the

same street down which the first officer chased Petitioner’s car. The gun specifically had

several indicia that indicated someone had recently thrown it there, such as the scuffing

consistent with someone dropping it on concrete and the fact that the gun was warm and

dry despite recent rains. A jury could have reasonably inferred from this evidence the

narrative the prosecution presented: that Petitioner had the gun and the drugs in his car,

that he threw them out his car window once an officer pursued him, and that the second

officer later recovered those same objects on the same street on which Petitioner threw

them. As constructive possession under Oklahoma law permits such “a series of

inferences” demonstrating the accused’s “knowledge and control” of the relevant

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evidence, Bivens, 431 P.3d at 982, more than enough evidence existed for a reasonable

jury to convict Petitioner of both crimes he challenges.

Second, the deferential stance associated with habeas review forbids resolving

Petitioner’s gun-operability argument in his favor. The Supreme Court has “repeatedly

held that a state court’s interpretation of state law, including one announced on direct

appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”

Hawes v. Pacheco, 7 F.4th 1252, 1264 (10th Cir. 2021) (quoting Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (per curiam)). Petitioner argues that he could not have been

convicted of firearm possession because the gun the police found was “inoperable” and

“not capable of firing,” which fails to meet the relevant statute’s definition of a firearm as

being “any firearm capable of discharging single or multiple projectiles from a single

round of ammunition,” Okla. Stat. Ann. tit. 21, § 1289.3. Petitioner is mistaken. The

statute covers real firearms and applies regardless of their operability rather than, as

Petitioner argues, only to “fake pistols manufactured to appear real.” The Oklahoma

Court of Criminal Appeals, to which Petitioner appealed his conviction and which twice

denied postconviction relief, already rejected this argument. The Oklahoma Court of

Criminal Appeals’ interpretation of this statute binds us, and, to the extent Petitioner

argues that interpretation is wrong, he has no habeas-relief claim. Boyd v. Ward, 179

F.3d 904, 916 (10th Cir. 1999) (“To the extent [the petitioner] argues the state court

erroneously interpreted and applied state law, that does not warrant habeas relief”).

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We DENY Petitioner a Certificate of Appealability, GRANT Petitioner’s request

to proceed in forma pauperis, and DISMISS this matter.2

Entered for the Court

Joel M. Carson III Circuit Judge

2 Petitioner moved to proceed in forma pauperis, declaring that he had only twenty dollars in his bank account. As he has therefore shown “a financial inability to pay the required fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal,” we grant his motion. McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997); see also 28 U.S.C. § 1915. 7