No. 4:13-CV-00383-GKF-PJC) (N.D. Okla.)
KELLY, HOLMES, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
J. Kelly, Jr. Circuit Judge
Derrick Horner, a state inmate appearing pro se, seeks a
certificate of appealability (COA) to appeal from the
district court's denial of his habeas corpus petition
made pursuant to 28 U.S.C. § 2254. Horner v.
Bryant, No. 13-CV-0383-GKF-PJC, 2016 WL 3190229 (N.D.
Okla. June 7, 2016). We deny his request for a COA, deny his
motion to proceed in forma pauperis (IFP), and dismiss the
Horner was convicted of first-degree manslaughter and
sentenced to 25 years' imprisonment. The Oklahoma Court
of Criminal Appeals (OCCA) affirmed his judgment and sentence
in a summary opinion on direct appeal. Horner v.
State, No. F-2011-611 (Okla. Crim. App. Dec. 11, 2012);
see also 1 R. 128-32. To appeal from the district
court's denial of his federal habeas petition, Mr. Horner
must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). To do so,
he must make a "substantial showing of the denial of a
constitutional right, " id. § 2253(c)(2),
by "showing 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, " Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks and citation omitted).
Because the OCCA addressed the merits of Mr. Horner's
arguments, he must demonstrate that its decision "was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court . . . or resulted in a decision that 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). And when it comes to ineffective
assistance of counsel claims, our review has two layers of
deference - one to counsel's reasonable strategic
choices, and the other to the state court's resolution of
the ineffective assistance claim. Woods v. Etherton,
136 S.Ct. 1149, 1151 (2016).
appeal,  Mr. Horner argues that a lack of his DNA
evidence in the victim's home indicates that he is
innocent. This claim does not appear to have been raised in
his habeas petition, let alone exhausted, and we do not
consider it on appeal. See Abernathy v. Wandes, 713
F.3d 538, 551 (10th Cir. 2013).
Horner next argues that his Fifth Amendment right to have
counsel present during a custodial interrogation was violated
because he was interrogated after he invoked his right to
counsel. When a suspect has "expressed his desire to
deal with the police only through counsel, [he] is not
subject to further interrogation by the authorities until
counsel has been made available, " unless he initiates
the contact. Edwards v. Arizona, 451 U.S. 477, 484
(1981). A suspect's request for counsel must be
unambiguous. Davis v. United States, 512 U.S. 452,
459 (1994). Mr. Horner claims he invoked his right to counsel
when he asked the detective whether he could "talk to a
lawyer before [he] talk[ed] to [the detective]."
Horner, 2016 WL 3190229, at *6. The detective said
"he could have a lawyer, " but would "probably
. . . not be talking" to the detective afterwards.
Id. Mr. Horner said "Mister, I'm so
confused, " so the detective told him to think it over
and left the room, and a different officer continued the
interrogation about four minutes later. Id. The
federal district court deferred to the OCCA's resolution:
Mr. Horner's statements are too ambiguous and equivocal
to amount to an invocation of his right to counsel; he asked
whether it was possible for him to speak to a lawyer, but
never requested to do so even after the detective told him he
could. See Davis, 512 U.S. at 459. The federal
district court's deference to the OCCA's resolution
of this claim is not reasonably debatable.
Mr. Horner argues that the officer who transported him to
jail forced him to confess. A due process violation exists if
a defendant's conviction is based in part on an
involuntary confession. Jackson v. Denno, 378 U.S.
368, 376 (1964). Rather, a confession must be the result of
"an essentially free and unconstrained choice by its
maker." Culombe v. Connecticut, 367 U.S. 568,
602 (1961). After the interrogation, an officer drove Mr.
Horner to the Tulsa County Jail. On the way, Mr. Horner,
without provocation, asked the officer whether he should take
the manslaughter plea. The officer told him that he should
tell the truth, but that his Miranda rights gave him
the "freedom to do whatever he'd like to do."
Horner, 2016 WL 3190229, at *7. As they pulled up to
the jail, Mr. Horner said that he wanted to talk to the
detective again, so they drove back to the Detective
Division. Id. At no point during the drive did the
officer ask any questions. Id. When they arrived,
the detective reminded Mr. Horner that he had been read his
Miranda rights, after which Mr. Horner admitted to
shooting the victim. Id. Again, the federal district
court's deference to the OCCA's determination that
Mr. Horner's confession was voluntary is not reasonably
Mr. Horner's request for a COA, DENY his motion to
proceed IFP, and DISMISS the appeal.
 We have considered all of the claims
raised in Mr. Horner's petition and decided by the
district court and conclude that they do not merit a COA for
substantially the same reasons given by ...