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

                                     TENTH CIRCUIT                        December 5, 2017

                                                                        Elisabeth A. Shumaker
 OLOYEA D. WALLIN, aka Donald                                               Clerk of Court
 Oloyea Wallin, aka Oloyea Wallin,

           Petitioner - Appellant,

 v.                                                          No. 17-1167
                                                   (D.C. No. 1:14-CV-01968-MSK)
 MICHAEL MILLER, Warden of Crowley                          (D. Colorado)
 County Correctional Facility; CYNTHIA
 COFFMAN,* Attorney General of the
 State of Colorado,

           Respondent - Appellee.


                                ORDER DENYING
                        CERTIFICATE OF APPEALABILITY **


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       Oloyea Wallin1 seeks a certificate of appealability (“COA”) from the district

court’s denial of his federal habeas petition pursuant to 28 U.S.C. § 2254. Exercising

jurisdiction under 28 U.S.C. § 1291, we deny his request and dismiss the appeal.




       *
       Pursuant to Fed. R. App. P. 43(c)(2), John Suthers is replaced by Cynthia
Coffman as Attorney General for the State of Colorado.
       **
          This order is not binding precedent, except under the doctrines of law of the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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
                                 I.     BACKGROUND

       Mr. Wallin was convicted by jury of second-degree assault in Colorado state court

and sentenced to fourteen years’ imprisonment. People v. Wallin, 167 P.3d 183, 186–87

(Colo. App. 2007). On appeal, the Colorado Court of Appeals upheld his conviction, but

remanded the case for resentencing because Mr. Wallin was not represented by counsel at

his sentencing hearing. Id. at 190–92. Mr. Wallin was resentenced to the same fourteen

year term of incarceration, this time represented by counsel.

       After unsuccessfully appealing his conviction and sentence in state court, Mr.

Wallin filed a motion for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United

States District Court for the District of Colorado. See Wallin v. Miller, No. 14-cv-01968-

MSK, 2015 WL 4456093, at *2 (D. Colo. July 21, 2015), aff’d in part, rev’d in part, 660

F. App’x 591 (10th Cir. 2016) (unpublished). He raised twenty-one claims of error, all of

which were denied by the district court. Id. at *1–2, 5–12. On appeal, this court granted a

COA on five claims of error: (1) admitting expert testimony on domestic violence,

(2) prosecutorial misconduct, (3) allowing the prosecution to use the victim’s confidential

medical information, (4) admitting the victim’s allegedly involuntary statements, and

(5) abuse of subpoena power. Wallin v. Miller, 660 F. App’x 591, 592 (10th Cir. 2016)

(unpublished). Upon consideration, we held that the first two claims were procedurally

barred, but remanded the remaining three claims to the district court for further

       1
        Because Mr. Wallin is a pro se litigant, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, we do not serve as
his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

                                             2
proceedings. Id. at 594. On remand, the district court denied all three claims on the

merits.2 Wallin v. Miller, No. 14-cv-01968-MSK, 2017 WL 1364692, at *2 (D. Colo.

Apr. 14, 2017) (unpublished). Mr. Wallin now appeals.3

                                   II.    DISCUSSION

         Before we may exercise jurisdiction over any of Mr. Wallin’s claims, he must

obtain a COA. See 28 U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals from . . .

the final order in which the detention complained of arises out of process issued by a

State court. . . .”). The district court did not issue Mr. Wallin a COA and he has not

specifically requested this court grant him one. However, “we construe his filing of a

notice of appeal as a request for a COA.” Frost v. Pryor, 749 F.3d 1212, 1230 (10th Cir.

2014).

         “Under [the Antiterrorism and Effective Death Penalty Act], we may not issue a

COA unless ‘the applicant has made a substantial showing of the denial of a

constitutional right.’” Id. (quoting 28 U.S.C. § 2253). Because the district court rejected

         2
        Despite Mr. Wallin’s assertion that he received no instructions from the district
court “on when or what to file,” he did in fact file a Reply to Answer with the district
court on January 13, 2017, addressing these claims on the merits. See Wallin v. Miller,
No. 14-CV-01968-MSK, 2017 WL 1364692, at *1 (D. Colo. Apr. 14, 2017)
(unpublished).
         3
         On the same day Mr. Wallin filed his notice of appeal, he also filed a “Motion to
Vacate Judgment Rule 59.” See Order at 1, Wallin v. Miller, No. 14-cv-01968-MSK (D.
Colo. June 5, 2017). Because Mr. Wallin submitted the motion outside the twenty-eight-
day period required by Rule 59(e), the district court considered the motion under Rule
60(b). Id. at 2. The court denied relief, id., and Mr. Wallin has not appealed the ruling.

                                              3
Mr. Wallin’s claims on the merits, he “must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Wallin fails to make that showing

here. Indeed, he does not claim the district court erred in its analysis on any of the three

claims before it on remand. In his amended opening brief,4 Mr. Wallin merely asserts the

district court was required to hold an evidentiary hearing on the remanded claims.5 But

Mr. Wallin did not request an evidentiary hearing and this court did not order one. See

Wallin, 660 F. App’x at 594. Even construing Mr. Wallin’s pleadings liberally, he has

failed to assert that “the district court’s assessment of the constitutional claims [was]

debatable or wrong.” See Slack, 529 U.S. at 484. Therefore, we deny his request for a

COA on these issues.6

       4
      We hereby grant Mr. Wallin’s motion for an additional extension to file his
Amended Brief and accept the brief as filed.
       5
         Mr. Wallin also briefly raised these issues in the appendix of his initial opening
brief, characterizing them as “Anders” issues. However, his bare assertions were limited
to arguing that the trial court erred and did not discuss the district court’s findings or
argue how the district court’s analysis was debatable or wrong. See Kelley v. City of
Albuquerque, 542 F.3d 802, 820 (10th Cir. 2008) (“We will not review an issue in the
absence of reasoned arguments advanced by the appellant as to the grounds for its
appeal.”) (citation omitted).
       6
          To the extent that Mr. Wallin is attempting to request an evidentiary hearing on
these claims, he failed to present this request to the district court and we decline to hear it
in the first instance. See United States v. Duncan, 242 F.3d 940, 950 (10th Cir. 2001)
(“As a general rule, we do not consider an issue not presented, considered, and decided
by the district court.”). Furthermore, “[t]he purpose of an evidentiary hearing is to resolve
conflicting evidence.” Anderson v. Atty. Gen. of Kansas, 425 F.3d 853, 860 (10th Cir.
2005). Because Mr. Wallin has failed to raise any claim of conflicting evidence, an
evidentiary hearing is unnecessary. See id. at 859.

                                              4
       Mr. Wallin also raises a variety of issues beyond the scope of the district court’s

decision on remand. In his initial opening brief, Mr. Wallin raises six claims of error not

addressed by the district court: (1) admission of testimony from a domestic violence

expert, (2) admission of a phone call from Mr. Wallin to police on the orders of his

probation officer, (3) failure to appoint “conflict-free” counsel to represent him at his

sentencing hearing, (4) denial of pre-sentence confinement credit, (5) permitting a

prosecution witness to observe the trial proceedings prior to testifying, and (6) admission

of allegedly unduly prejudicial photographs of the victim’s injuries.7

       Preliminarily, this court rejected Mr. Wallin’s initial opening brief because he

failed to properly serve the Colorado Attorney General. His amended brief purports to

incorporate by reference his initial opening brief, but there is no evidence that the

Colorado Attorney General was served with the initial brief. Therefore, it is questionable

whether proper service has yet occurred. Regardless, Mr. Wallin’s claims are unavailing.

       Mr. Wallin presented claims 1, 2, 4, and 5 to the district court in his initial habeas

petition. See Order to Dismiss in Part and for Answer at 4-12, Wallin v. Miller, No. 14-

cv-01968-MSK (D. Colo. Mar. 30, 2015). The district court denied relief and did not

issue a COA. Id. On appeal, we declined to grant a COA on claims 2 and 4 because no

reasonable jurist could debate the accuracy of the trial judge’s rulings. See Order at 5–7,

9–10, Wallin v. Miller, No. 15-1301 (10th Cir. May 12, 2016). We additionally refused to

       7
         Mr. Wallin characterizes claims 5 and 6 as “Anders” issues. However, he fails to
argue them as such. As noted above, he merely presents the conclusory assertion that the
trial court erred.

                                              5
grant a COA on claim 5 because it was procedurally barred, id. at 15–16, and upon

further review held that claim 1 was also procedurally barred, Wallin, 660 F. App’x at

593. Because these claims have already been decided by this court, they are moot. See

Woodberry v. Bruce, 203 F. App’x 186, 189 (10th Cir. 2006) (unpublished). Mr. Wallin’s

third claim is similarly moot because the Colorado Court of Appeals granted him relief

and he was represented by counsel at his resentencing hearing.

       Finally, Mr. Wallin’s claim that the trial court erred by admitting unduly

prejudicial photographs of the victim’s injuries is waived because it was not presented to

the district court. See United States v. Porter, 405 F.3d 1136, 1141–42 (10th Cir. 2005)

(“We do not consider issues not presented to the district court, and they are deemed

waived.”). Mr. Wallin has made no argument as to why we should consider the claim and

we decline to do so. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent

compelling reasons, we do not consider arguments that were not presented to the district

court.”).

                                 III.   CONCLUSION

       For the reasons set forth above, we DENY Mr. Wallin’s request for a COA and

DISMISS the appeal. Additionally, because Mr. Wallin has failed to raise any non-

frivolous grounds for appeal, we DENY his application for in forma pauperis status. See

Coppedge v. United States, 369 U.S. 438, 445 (1962).

                                             Entered for the Court

                                             Carolyn B. McHugh
                                             Circuit Judge
                                             6
