                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                     TENTH CIRCUIT                                July 15, 2016

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
BOBBY JOE SMITH, II,

              Petitioner - Appellant,
                                                              No. 15-7063
v.                                               (D.C. No. 6:12-CV-00314-RAW-KEW)
                                                              ( E.D. Okla.)
ROBERT C. PATTON, DOC Director,

              Respondent - Appellee.




             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.


       Bobby Joe Smith II was convicted by an Oklahoma jury of raping and molesting

his fourteen-year-old niece. For that crime, he was sentenced to life imprisonment.

While that conviction arose out of events occurring in June 2009, Smith had actually

been molesting his niece on a regular basis since she was nine-years-old. He also had

raped her and her friend in his mother’s shed. These facts were introduced at trial as

sexual propensity evidence. Smith appealed from his conviction and sentence. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed. He twice unsuccessfully

attempted to seek post-conviction relief with the state trial court; he did not appeal from

the denials of those applications.
       Smith’s 28 U.S.C. § 2254 habeas petition raises four claims: (1) the trial court

denied him the right to a fair trial by admitting the sexual propensity evidence; (2) double

jeopardy was violated by the use of the sexual propensity evidence at trial when that

evidence also formed the basis of charges in an unrelated case; (3) the police illegally

obtained pictures of the tattoo on his penis and allegedly altered the pictures so the tattoo

would match the victims’ descriptions, and (4) trial and appellate counsel were

ineffective by failing to object to the illegal pictures, investigate DNA evidence, and

present alibi witnesses. A magistrate judge recommended dismissing the petition because

the admission of the propensity evidence had not deprived him of a fair trial and the

remaining claims were procedurally defaulted—they had not been properly exhausted

and if Smith were to return to state court to do so, the OCCA would find them

procedurally barred. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.

838, 842 (1999); Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006). The magistrate

judge rejected Smith’s attempts to avoid the default. The district judge adopted the

recommendation in full and dismissed the petition. Smith wants another opportunity to

make his case, but he is unable to pass the threshold.

       A certificate of appealability (COA) is a jurisdictional prerequisite to our review

of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

To obtain one, Smith must make “a substantial showing of the denial of a constitutional

right,” see 28 U.S.C. § 2253(c)(2). We, in turn, are required to determine whether

“reasonable jurists could debate whether (or, for that matter, agree that) [a habeas]

petition should have been resolved in a different manner or that the issues presented were

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adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotations omitted).

         We have thoroughly reviewed the record, the magistrate judge’s recommendation,

and the district court’s decision. Smith has failed to make the applicable showing. His

COA application and opening brief amount to little more than a lengthy diatribe against

all involved in his case; they certainly do not convince us that reasonable jurists could

debate the correctness of the result reached by the district court.

         We DENY a COA and DISMISS this matter. The district judge allowed Smith to

proceed on appeal without prepayment of fees (in forma pauperis or ifp). But only

prepayment is excused, see 28 U.S.C. § 1915(a). Smith is required to pay all filing

($5.00) and docketing fees ($500.00). Payment must be made to the Clerk of the District

Court.



                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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