                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 6, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ARTHUR ANTHONY GONZALES,

                Petitioner-Appellant,

    v.                                                   No. 09-4153
                                               (D.C. No. 2:06-CV-00934-DAK)
    LOWELL CLARK, Warden, Central                         (D. Utah)
    Utah Correctional Facility,

                Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.



         Arthur Anthony Gonzales, a Utah State prisoner appearing pro se, seeks a

certificate of appealability (COA) to challenge the district court’s order denying

his 28 U.S.C. § 2254 habeas petition. We deny the request for a COA and dismiss

this appeal.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                     B ACKGROUND

      Mr. Gonzales was accused of sexually assaulting his fiancee’s sixteen-year-

old daughter. He claimed that the accusations were prompted by the victim’s

opposition to the marriage and her psychiatric problems. Before trial, defense

counsel subpoenaed the victim’s psychiatric records, falsely stating that she had

placed her mental and physical condition at issue in a lawsuit. The trial court

later quashed the subpoenas, precluded the defense from using any information

from the records, and suggested that defense counsel’s awareness of that

information had created “a possibly insurmountable conflict of interest.” State v.

Gonzales, 125 P.3d 878, 882 (Utah 2005). Defense counsel withdrew, and he was

replaced by attorney Janet Miller.

      At trial, Ms. Miller inadvertently opened the door to the prosecution

introducing evidence that the victim had made other sexual-assault accusations

against Mr. Gonzales. Additionally, Ms. Miller withdrew an objection she had

made to the prosecution’s questioning of Mr. Gonzales regarding his delinquent

child-support payments after he testified that his children were his life and that he

treated the victim like one of his own children. Finally, the trial court refused to

admit evidence that the victim and her friend, who described the victim as scared

and upset after reporting the assault, had misdemeanor shoplifting convictions.

      The jury found Mr. Gonzales guilty on one count of attempted rape and one

count of forcible sexual abuse. He appealed to the Utah Supreme Court, arguing

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that (1) he received ineffective assistance of counsel; (2) he was denied counsel

of his choice; (3) the trial court erred in quashing the subpoena for the victim’s

psychiatric records; (4) the trial court erred in refusing to allow inquiry into the

shoplifting convictions; and (5) cumulative error plagued the trial.

      The Utah Supreme Court affirmed. It analyzed Ms. Miller’s effectiveness

under Strickland v. Washington, 466 U.S. 668 (1984) (stating that ineffective

assistance requires deficient and prejudicial performance). Specifically, in regard

to her opening the door to the victim’s other accusations, the court concluded that

there was no prejudice because Ms. Miller had “capitalized on the opportunity to

attack [the victim’s] credibility . . . by pointing out that her own mother believed

she lied.” Gonzales, 125 P.3d at 893. As for Ms. Miller’s withdrawing an

objection to the issue of Mr. Gonzales’s child support arrears, the court concluded

that it may have been a tactical decision to avoid drawing further attention to the

revelation, and in any event, was not prejudicial.

      Regarding Mr. Gonzales’s claim that he was denied counsel of his

choosing, the Utah Supreme Court declined to review it because the claim was not

made in the trial court. And Mr. Gonzales’s argument concerning the quashed

subpoena was rejected because he failed to follow the procedure for obtaining the

records. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (holding that a

criminal defendant has no right to directly review the victim’s confidential

records, but rather, must have the records submitted to the trial court for in

                                          -3-
camera review). The exclusion of the shoplifting convictions was upheld as a

proper restriction on cross-examination because Mr. Gonzales failed to show how

the convictions demonstrated bias against him, as required by Davis v. Alaska,

415 U.S. 308, 319-20 (1974) (indicating that the right of confrontation as to

juvenile adjudications applies only if relevant to witness bias). Finally, the court

found the cumulative-error doctrine inapplicable.

       Mr. Gonzales then filed a habeas petition in federal district court, repeating

the same arguments he made to the Utah Supreme Court. The district court

denied the petition, concluding that where Mr. Gonzales’s arguments implicated

clearly established federal law, the Utah Supreme Court acted reasonably. The

district court also found a procedural bar to Mr. Gonzales’s claim that he was

denied counsel of his choice, because he failed to preserve the issue for direct

appeal.

       Mr. Gonzales timely filed a notice of appeal, and applied for a COA from

this court.

                                     D ISCUSSION

       “A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009). We

will issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

Mr. Gonzales must establish that “jurists of reason could disagree with the district

                                          -4-
court’s resolution of his constitutional claims or that jurists could conclude [that]

the issues presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). If a plain procedural bar is

present and the district court correctly invokes it to dispose of a claim, COA

should be denied on that claim. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Finally, in assessing a pro se COA application, we review the claims liberally.

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

      The Antiterrorism and Effective Death Penalty Act (AEDPA) governs the

underlying merits of Mr. Gonzales’s claims. Under AEDPA, habeas relief is

available if the state court adjudication “resulted in a decision that 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).

Habeas relief is also available if the petitioner demonstrates with clear and

convincing evidence that the state court unreasonably determined the facts.

28 U.S.C. § 2254(d)(2); House v. Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008).

      Mr. Gonzales has not offered a reasoned argument as to how the district

court’s resolution of his claims was wrong or even debatable under AEDPA. Nor

has he addressed the plain procedural bar found by the district court. Instead, Mr.

Gonzales attempts to raise a Batson 1 issue for the first time. Specifically, he

1
      Batson v. Kentucky, 476 U.S. 79, 86 (1986) (stating that “[t]he Equal
Protection Clause guarantees the defendant that the State will not exclude
                                                                      (continued...)

                                          -5-
argues that his equal-protection rights were violated because he, an African-

American, was in an inter-racial relationship with the victim’s white mother, and

he was tried by an all-white jury. But we need not issue a COA for a claim not

included in a habeas petition. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir.

2004). And because Mr. Gonzales failed to include his Batson claim in his direct

appeal to the Utah Supreme Court, the claim is subject to a procedural bar. See

Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002).

      After reviewing the request for a COA, the record, the district court’s

order, and the applicable law, we conclude that Mr. Gonzales has failed to meet

the standard for issuance of a COA. Accordingly, for substantially the same

reasons stated in the district court’s order denying habeas relief, filed July 7,

2009, we DENY the request for a COA and DISMISS this appeal. Mr. Gonzales’s

“Motion to Continue” is DENIED.


                                                      Entered for the Court


                                                      Monroe G. McKay
                                                      Circuit Judge




1
 (...continued)
members of his race from the jury venire on account of race, or on the false
assumption that members of his race as a group are not qualified to serve as
jurors” (citation and footnote omitted)).

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