Appellate Case: 23-6063 Document: 010111027380 Date Filed: 04/05/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 5, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KERRY RYAN NOBLES,
Petitioner - Appellant,
v. No. 23-6063 (D.C. No. 5:22-CV-00376-G) WILLIAM “CHRIS” RANKINS, Warden, (W.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Kerry Ryan Nobles, an Oklahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to challenge the district court’s denial of his
28 U.S.C. § 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)
(requiring a COA to appeal “the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court”). Exercising
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-6063 Document: 010111027380 Date Filed: 04/05/2024 Page: 2
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his request for a COA and
dismiss this matter.1
I. BACKGROUND
A. State Cases
This matter stems from convictions and sentences in five separate state court
cases. In two of them, Mr. Nobles was charged with multiple counts of domestic
violence, sexual assault, kidnapping, and other offenses. In the other three, he was
charged with violating a victim protective order and attempting to prevent a state witness
from testifying.
In the first two cases, he pled guilty in 2016 to all but the sexual assault and
kidnapping charges. In 2017, the court imposed a sentence of over 60 years, making the
convictions final. The court advised Mr. Nobles that, to appeal, he must apply to
withdraw his plea within 10 days, and if the application was denied, he could seek
certiorari to the Oklahoma Court of Criminal Appeals (“OCCA”). He did not apply to
withdraw his plea. Mr. Nobles chose to serve his sentence in an Oklahoma Department
of Corrections (“ODOC”) prison instead of county jail while awaiting trial on the
remaining sexual assault and kidnapping charges in the first two cases and the charges in
the other three cases.
1 Because Mr. Nobles appears pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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In 2018, a jury found Mr. Nobles guilty of witness tampering in one of the other
three cases. The court imposed a sentence to be served consecutively to the 2017
sentence. He did not file an appeal.
In 2020, Mr. Nobles pled guilty to the remaining charges. The court modified the
2017 sentence and ordered that the sentences for the 2017, 2018, and 2020 convictions be
served concurrently, resulting in a 20-year sentence. Mr. Nobles received credit for time
served in county jail, but not for time served in the ODOC prison on the 2017 sentence.
As with the 2016 plea, he did not apply to withdraw his 2020 plea.
B. State Postconviction Proceedings
In 2021, Mr. Nobles sought postconviction relief in state court, arguing his 2016
and 2020 guilty pleas were invalid. He alleged that (1) the prosecution failed to disclose
exculpatory evidence and engaged in prosecutorial misconduct; (2) the trial court erred in
accepting his 2016 plea; (3) the attorneys who represented him leading to the 2017 and
2020 convictions were ineffective for various reasons, including failure to seek
withdrawal of his 2016 plea despite his having asked them to do so; (4) his 2020 plea was
not knowing and voluntary because he thought he would receive credit for time served in
the ODOC prison on the 2017 sentence; and (5) the State breached the 2020 plea
agreement by not crediting his prison time. Of these five arguments, (1) and (3) appear to
apply to his 2017 and 2020 convictions, (2) to his 2017 convictions, and (4) and (5) to his
2020 convictions. The court construed Mr. Nobles’s application as seeking appellate and
postconviction relief.
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The court first said Mr. Nobles could not appeal his 2017 or 2020 convictions out
of time, finding he had failed to show he was denied an appeal through no fault of his
own. It noted that despite his having been advised on how to perfect an appeal,
Mr. Nobles did not move to withdraw his pleas, so he “fail[ed] to take steps to invoke his
right to appeal.” ROA at 561. It found his allegations that he told counsel to move to
withdraw his pleas not “plausible” in light of his failure to appeal any of his convictions,
id., and concluded the allegations were “insufficient to meet his burden of demonstrating
that he was denied an appeal through no fault of his own,” ROA at 562.
The court also denied postconviction relief, determining his application was not
verified and therefore did not comply with the statutory requirements to invoke the
court’s authority under Oklahoma’s postconviction procedure. Thus, the court did not
address Mr. Nobles’s claims on the merits.
The OCCA affirmed in a three-page order. First, it upheld the trial court’s finding
that Mr. Nobles failed to “provide sufficient evidence or any authority to establish that he
was denied an appeal through no fault of his own.” ROA at 565. Second, the OCCA
affirmed the denial of postconviction relief on an alternative ground, holding that
Mr. Nobles’s arguments were procedurally defaulted because he “had not established
sufficient reason for not” raising them in a timely appeal. Id.; see Okla. Stat. tit. 22,
§ 1086.
C. District Court § 2254 Proceedings
In 2022, Mr. Nobles, through counsel, filed his § 2254 application in federal
district court. He again challenged his 2017 and 2020 convictions based largely on the
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same arguments he raised in the state-court postconviction proceeding.2 The Respondent
Warden moved to dismiss the claims challenging the 2017 convictions, arguing
Mr. Nobles was no longer in custody on the 2017 sentence. He also moved to dismiss the
§ 2254 application as time-barred under 28 U.S.C. § 2244(d)(1).
The application was referred to a magistrate judge, who recommended dismissal
of all claims because Mr. Nobles’s arguments were procedurally barred. The district
court overruled Mr. Nobles’s objections to the magistrate judge’s recommendation, but
denied relief on the 2017 convictions on a different ground, granting the Respondent
Warden’s motion and holding that Mr. Nobles was no longer in custody for those
offenses. The court dismissed the claims challenging the 2020 convictions because Mr.
Nobles’s arguments were procedurally barred. It also denied a COA.
II. DISCUSSION
A. COA Requirements and AEDPA
We must grant a COA to review a § 2254 application. 28 U.S.C. § 2253(c)(1)(A);
see Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). To receive a COA, an applicant
must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), and must show “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
2 In his § 2254 application, Mr. Nobles did not challenge the OCCA’s ruling that he could not seek appellate relief out of time.
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adequate to deserve encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
When a district court dismisses a § 2254 motion on procedural grounds, we will
issue a COA only if the applicant shows it is “debatable whether the petition states a valid
claim of the denial of a constitutional right and . . . whether the district court was correct
in its procedural ruling.” Id. at 478.
Our consideration of Mr. Nobles’s request for a COA must account for the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), which requires “deferential
treatment of state court decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.
2004); accord Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). Under
AEDPA, when a state court has adjudicated the merits of a claim, a federal court cannot
grant habeas relief unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
When a state court has denied a claim based on a factual determination, a federal
court cannot grant habeas relief on that claim unless the state court’s decision “was based
on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). “[A] factual determination only
qualifies as unreasonable . . . if all ‘reasonable minds reviewing the record’ would agree
it was incorrect.” Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018) (quoting
Brumfield v. Cain, 576 U.S. 305, 314 (2015) (brackets omitted)). Thus, a state court’s
factual determinations “shall be presumed to be correct” unless the applicant rebuts them
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by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 340;
see Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013). “We may not
characterize . . . state-court factual determinations as unreasonable ‘merely because we
would have reached a different conclusion in the first instance,’” Brumfield, 576 U.S. at
313–14 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010) (brackets omitted)).
B. Procedural Default
Although the district court dismissed Mr. Nobles’s challenges to his 2017
convictions on the ground he was not in custody on those offenses when he filed his
§ 2254 application, we deny his request for a COA because he procedurally defaulted
these challenges in state court.3 We may deny a COA on a ground that is supported
by the record even if it was not relied on by the district court. See Davis v. Roberts,
425 F.3d 830, 834 (10th Cir. 2005). We similarly deny a COA on his challenges to his
2020 convictions because he also procedurally defaulted these challenges in state court,
as the district court held.
Legal Background
a. Procedural default
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
3 Although “[§] 2254’s in-custody requirement is jurisdictional,” McCormick v. Kline, 572 F.3d 841, 848 (10th Cir. 2009), we have “leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (brackets and quotations omitted).
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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). “A state procedural
ground is independent if it relies on state law, rather than federal law, as the basis for the
decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). It is adequate if it
“was firmly established and regularly followed.” Beard v. Kindler, 558 U.S. 53, 60
(2009) (quotations omitted).
b. Cause and prejudice
To overcome a procedural default, a § 2254 applicant must either “demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750. “Cause under the cause and prejudice
test must be something external to the petitioner, something that cannot fairly be
attributed to him.” Id. at 753. To demonstrate prejudice, “a petitioner must show actual
prejudice resulting from the alleged constitutional violation.” Johnson v. Champion, 288
F.3d 1215, 1227 (10th Cir. 2002) (quotations omitted).
Ineffective assistance of counsel can serve as cause to excuse a procedural default.
See Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). To establish ineffective
assistance of counsel, an applicant must show (1) constitutionally deficient performance
that (2) resulted in prejudice by demonstrating “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
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c. Miscarriage of justice
The fundamental miscarriage of justice exception to the procedural default rule “is
a markedly narrow one, implicated only in extraordinary cases where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.”
Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (brackets and quotations omitted).
A claim of actual innocence must be based on new evidence suggesting “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998); see also Calderon v. Thompson, 523 U.S. 538, 559 (1998) (“The miscarriage of
justice exception is concerned with actual as compared to legal innocence. . . . To be
credible, a claim of actual innocence must be based on reliable evidence not presented at
trial.” (quotations omitted)).
Application
When the OCCA affirmed the trial court’s denial of postconviction relief on both
his 2017 and 2020 convictions, it relied on the state procedural default rule that
Mr. Nobles waived his claims by not raising them in a direct appeal. See Okla. Stat. tit.
22, § 1086; Hawes v. Pacheco, 7 F.4th 1252, 1261 n.6 (10th Cir. 2021) (federal habeas
court “must focus on the last state court decision explaining its resolution of the
petitioner’s federal claims” (brackets and quotations omitted)). The following discussion
shows that reasonable jurists would not debate that he cannot overcome procedural
default.
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a. Independent and adequate state ground
Mr. Nobles contends that Oklahoma’s waiver rule is neither independent nor
adequate, but we have repeatedly held that it is. See, e.g., Ellis v. Hargett, 302 F.3d
1182, 1186 (10th Cir. 2002); Hale v. Gibson, 227 F.3d 1298, 1330 (10th Cir. 2000). He
presents no authority to the contrary. Thus, reasonable jurists would not debate that his
claims were procedurally defaulted on an independent and adequate state ground.
On cause and prejudice, Mr. Nobles argued in district court that his counsel’s
failure to move to withdraw his 2016 guilty plea excused the procedural default of his
postconviction claims challenging both his 2017 and 2020 convictions.4 Although
counsel’s failure to preserve a claim for review in state court may be a basis for
overcoming a procedural default, Edwards, 529 U.S. at 451, Mr. Nobles has not shown
that counsel’s alleged ineffectiveness in that regard excused the procedural default of his
postconviction claims. See Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998)
(explaining that to show that counsel’s ineffectiveness excused a procedural default, the
petitioner must show that counsel’s deficient performance prejudiced the defense).
4 We do not address the additional cause-and-prejudice arguments Mr. Nobles raises for the first time in his application for COA. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (declining to consider arguments for COA that pro se applicant failed to present in district court).
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i. 2017 convictions
Because the district court dismissed Mr. Nobles’s claims challenging the 2017
convictions based on lack of jurisdiction, it did not address whether his cause-and-
prejudice argument excused his procedural default of those claims. In support of that
argument, Mr. Nobles asserted that shortly after his sentencing in 2017, he told his
attorney that he wanted to withdraw his 2016 plea. See ROA at 640. The state trial court
found this assertion not “plausible.” ROA at 561. The OCCA agreed, concluding that
“the record fail[s] to establish [he] was denied an appeal through no fault of his own.”
ROA at 566. The OCCA thus rejected Mr. Nobles’s assertion that counsel was to blame
for his failure to perfect his right to appeal. He did not directly challenge this finding in
district court.
Before this court, Mr. Nobles asserts that the state courts’ finding was
“conclusory,” Aplt. Opening Br. at 26. The OCCA’s ruling that Mr. Nobles “has not
established sufficient reason for not asserting his current grounds for relief in direct
appeal proceedings,” ROA at 565, was brief, but the OCCA relied on the state trial
court’s finding that it was implausible Mr. Nobles told counsel to appeal. Under that
finding, Mr. Nobles could not show either the deficient performance or prejudice
elements for ineffective assistance of counsel under Strickland.
If we review for AEDPA deference, see Roberson v. Rudek, 446 F. App’x 107,
109–10 (10th Cir. 2011) (unpublished) (implicitly agreeing with deferential standard by
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affirming district court’s invocation of AEDPA deference),5 reasonable jurists would not
conclude that the state courts unreasonably applied Supreme Court law, 28 U.S.C.
§ 2254(d)(1), and/or unreasonably determined facts, id. § 2254(d)(2). As to the latter,
Mr. Nobles further does not present clear and convincing evidence to rebut the
presumption that the state courts’ findings of fact are correct. See id. § 2254(e)(1);
Littlejohn, 704 F.3d at 825.
Even if AEDPA deference does not apply, reasonable jurists would not debate that
Mr. Nobles’s cause-and-prejudice argument does not excuse his procedural default of his
claims challenging the 2017 convictions.
ii. 2020 convictions
In district court, Mr. Nobles did not allege in his cause-and-prejudice argument
that he told counsel to file an application to withdraw his 2020 plea. See ROA at 640.
And he did not raise an ineffective assistance of counsel claim on that basis in the
state-court postconviction proceedings. The district court concluded that such a claim
was unexhausted, therefore procedurally barred, and could not be used to establish cause
for his procedural default of his claims challenging the 2020 convictions. See Edwards,
529 U.S. at 452 (explaining that the ineffective assistance of counsel claim “generally
must be presented to the state courts as an independent claim before it may be used to
5 See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
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establish cause for a procedural default.” (quotations omitted)). Reasonable jurists would
not debate the correctness of that conclusion.
Mr. Nobles also has not shown a fundamental miscarriage of justice to excuse his
procedural default. He has not made any showing, let alone a “credible showing of actual
innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). No reasonable jurist
would find otherwise.
III. CONCLUSION
For the foregoing reasons, reasonable jurists would not debate the district court’s
decision that Mr. Nobles was not entitled to habeas relief. We deny a COA and dismiss
this matter.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge