Okla.) (D.C. No. 5:18-CV-00831-D)
HOLMES, MURPHY, and CARSON, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
MICHAEL R. MURPHY CIRCUIT JUDGE.
pro se, Oklahoma state prisoner Archie Lewis Frazier
seeks a certificate of appealability ("COA") so he
can appeal the district court's denial of the habeas
petition he filed pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2253(c)(1)(A) (providing that
no appeal may be taken from a final order disposing of a
§ 2254 petition unless the petitioner first obtains a
COA). Frazier's motion to proceed in forma
pauperis on appeal is granted.
16, 2017, Frazier entered a guilty plea to nine drug-related
charges. One week later, Frazier moved to withdraw his guilty
plea but thereafter withdrew the motion. Frazier's
request for state post-conviction relief was denied. The
Oklahoma courts concluded the issues Frazier sought to raise
were procedurally defaulted because he failed to raise them
in a direct appeal. See Jones v. State, 704 P.2d
1138, 1140 (Okla. Crim. App. 1985).
filed the instant § 2254 habeas petition on August 27,
2018. In his petition, Frazier raised three claims of error:
(1) his guilty plea was not knowing and voluntary because his
attorney and the trial court erroneously informed him of the
minimum sentence for drug trafficking, (2) the sentence
imposed for possession of marijuana was excessive, and (3) he
was convicted of a crime that was not charged. In a
comprehensive Report and Recommendation, a federal magistrate
judge concluded all three claims were procedurally defaulted
in Oklahoma state court. The magistrate judge, however,
recommended denying the claims on the merits. The district
court adopted the Report and Recommendation, adjudicating
Frazier's claims as follows. As to Frazier's claim
that his guilty plea was not knowing and voluntary because he
was erroneously informed of the minimum sentence for
trafficking in heroin, a narcotic drug, the district court
concluded Frazier was correctly advised that the term of
imprisonment he faced was ten years. See Okla. Stat.
tit. 63 § 2-101(26) (2017) (defining "narcotic
drug" as including opium and opiates). As to
Frazier's claim that the sentence he received for
possession of marijuana was excessive, the district court
concluded Frazier's conviction was properly classified as
a felony conviction and, thus, his ten-year sentence did not
exceed the statutory maximum authorized by Oklahoma law.
Frazier also claimed he was convicted of possession of a
firearm without being so charged. The district court
concluded Frazier was not entitled to habeas relief based on
a scrivener's error because the record shows he was
actually charged and convicted of possession of a firearm
after former felony convictions.
appellate brief, Frazier challenges the district court's
disposition of his three substantive claims, and also argues
the court erred by failing to hold an evidentiary hearing. To
be entitled to a COA, Frazier must make "a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). To make the requisite showing, he
must demonstrate "that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further." Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quotations omitted). In evaluating whether
Frazier has satisfied his burden, this court undertakes
"a preliminary, though not definitive, consideration of
the [legal] framework" applicable to each of his claims.
Id. at 338. Although Frazier need not demonstrate
his appeal will succeed to be entitled to a COA, he must
"prove something more than the absence of frivolity or
the existence of mere good faith." Id.
court has reviewed Frazier's application for a COA and
appellate brief, the district court's Order, the
magistrate judge's Report and Recommendation, and the
entire record on appeal pursuant to the framework set out by
the Supreme Court in Miller-El and concludes Frazier
is not entitled to a COA. The district court's resolution
of his claims is not reasonably subject to debate and the
claims are not adequate to deserve further proceedings.
Because Frazier's claims were capable of being resolved
on the record, the district court did not abuse its
discretion by failing to hold an evidentiary hearing. See
Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).
Frazier has not "made a substantial showing of the
denial of a constitutional right," he is not entitled to
a COA. 28 U.S.C. § 2253(c)(2). This court