                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 23, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT


 JOHN PRUITT,

          Petitioner-Appellant,
                                                          No. 10-7016
                                                          (E.D. Okla.)
 v.
                                             (D.C. No. 6:09-CV-00341-FHS-KEW)
 DAVID PARKER,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      John Pruitt, an Oklahoma state inmate proceeding pro se, 1 seeks a

Certificate of Appealability (“COA”) so that he may challenge the district court’s

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.


      *
              This Order is not binding precedent, except under the doctrines of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 of Appellate Procedure 32.1
and 10th Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case therefore is ordered submitted without oral argument.
      1
             Because Mr. Pruitt is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we conclude that

Mr. Pruitt has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, we DENY his request for a COA and

DISMISS this matter.

I. Background

      After a jury trial, Mr. Pruitt was convicted in Oklahoma state court of child

sexual abuse based on the abuse of his minor daughter. He was sentenced to life

imprisonment and ordered to pay a $5000 fine. The Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed Mr. Pruitt’s conviction on direct appeal; he did not

seek state post-conviction relief. On July 15, 2009, Mr. Pruitt filed a federal

habeas petition. 2 Although some of Mr. Pruitt’s claims had not been exhausted in

state court, the district court nevertheless addressed them and denied the petition

on its merits pursuant to 28 U.S.C. § 2254(b)(2). After Mr. Pruitt filed a Notice

of Appeal, the district court denied Mr. Pruitt a COA, “conclud[ing] [that]

petitioner has failed to make a substantial showing of the denial of a

constitutional right as required by 28 U.S.C. § 2253(c)(2)” and “find[ing] that

petitioner has not demonstrated that reasonable jurists would find [this] court’s

assessment of the constitutional claims debatable or wrong.” R., Vol. I, at 261

(Order & Op. Denying Certificate of Appealability, dated Apr. 5, 2010) (internal

      2
             Mr. Pruitt filed his petition in the United States District Court for the
Western District of Oklahoma, but it was thereafter transferred to the United
States District Court for the Eastern District of Oklahoma.

                                         -2-
quotation marks omitted) (third alteration in original). The district court

thereafter granted Mr. Pruitt permission to proceed on appeal in forma pauperis.

II. Discussion

      Reading Mr. Pruitt’s application for a COA liberally in light of his pro se

status, he appears to seek a COA for the following issues: (1) the alleged

ineffectiveness of trial counsel in failing to investigate and object to the

testimony of Carolyn Ridling, a Sexual Assault Nurse Examiner (“SANE”), who

later was found to have a suspended nursing license at the time she examined the

victim and testified at trial; (2) the OCCA’s failure to grant him a new trial based

on that newly discovered evidence relating to Ms. Ridling’s lack of licensure,

which Mr. Pruitt claims violated his due process right to a fair trial; (3) the

alleged ineffectiveness of trial counsel in failing to challenge the length of his

sentence; (4) the erroneous admission of the victim’s grandmother’s allegedly

biased testimony; (5) the alleged ineffectiveness of appellate counsel concerning

the motion for a new trial; and (6) the alleged misconduct by prosecutors in using

perjurious testimony in closing argument—presumably that of Ms. Ridling.

      Mr. Pruitt must seek a COA to proceed further because, without a COA, we

lack jurisdiction to consider the merits of a habeas appeal. 28 U.S.C. §

2253(c)(1)(A). We may issue a COA only if “the applicant has made a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To

make such a showing, Mr. Pruitt must demonstrate “that jurists of reason could


                                          -3-
disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); accord

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000); Allen v. Zavaras, 568 F.3d

1197, 1199 (10th Cir. 2009). In determining whether to grant a COA, we do not

engage in a “full consideration of the factual or legal bases adduced in support of

the claims.” Miller-El, 537 U.S. at 336. Rather, we undertake “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

claim. Id. at 338. Although an applicant is not required to demonstrate that his

appeal will succeed, he must “prove something more than the absence of frivolity

or the existence of mere good faith.” Id. (internal quotation marks omitted).

      Moreover, because the OCCA addressed the merits of one of Mr. Pruitt’s

claims, “AEDPA’s deferential treatment of state court decisions must be

incorporated into our consideration of [his] request for [a] COA.” Dockins v.

Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may grant an

application for a writ of habeas corpus on behalf of a person in state custody on a

claim that was adjudicated on the merits in state court only if the state court’s

decision “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), or “was based on an unreasonable determination




                                          -4-
of the facts in light of the evidence presented in the State court proceeding,” id.

§ 2254(d)(2).

      Having thoroughly reviewed the record on appeal, we conclude that Mr.

Pruitt is not entitled to a COA on any of the issues that he seeks to pursue on

appeal. As a threshold matter, four of Mr. Pruitt’s claims are raised for the first

time on appeal—viz., the alleged ineffectiveness of trial counsel in failing to

challenge the length of his sentence; the erroneous admission of the victim’s

grandmother’s allegedly biased testimony; the alleged ineffectiveness of appellate

counsel concerning the motion for a new trial; and alleged prosecutorial

misconduct in using perjurious testimony in closing argument. We will not

consider issues raised on appeal that were not raised before the district court as

part of the habeas petition, 3 see Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.

1999), and so will turn instead to Mr. Pruitt’s remaining claims that were included

in his habeas petition.

      Mr. Pruitt first seeks a COA to challenge the alleged ineffectiveness of trial

counsel in failing to investigate and object to the testimony of Carolyn Ridling.

As the OCCA found,

      3
             Additionally, to the extent that Mr. Pruitt’s challenge to the victim’s
grandmother’s testimony may be characterized as a challenge to the state court’s
evidentiary ruling, we will not provide habeas relief on that basis unless that
evidentiary ruling rendered the trial so fundamentally unfair that it resulted in a
denial of his constitutional rights. See Duckett v. Mullin, 306 F.3d 982, 999 (10th
Cir. 2002). Mr. Pruitt has not claimed that the state court’s admission of her
testimony deprived him of any constitutional rights.

                                          -5-
             Ridling was called to testify that the absence of physical
             evidence in a forensic exam is not unusual in child sexual
             abuse cases, particularly under the circumstances of this case.
             Ridling testified that she was a registered and licensed SANE
             nurse in Texas and Oklahoma. After the trial, appellate
             counsel discovered that Ridling’s nursing licenses in Texas
             and Oklahoma had lapsed in 2004, before the time of either the
             exam or her trial testimony. Ridling also testified that she was
             in fact working as a SANE nurse (licensed or not) and
             performing routine examinations at the time she did the exam
             in this case, and Pruitt does not challenge this evidence.

R., Vol. I, at 53. Mr. Pruitt contends that Ms. Ridling should not have testified as

an expert witness because she was not properly licensed. He contends that her

testimony was prejudicial to him because expert testimony is “highly influential

and containing [sic] great weight with juries.” Aplt. Opening Br. at 6. He further

argues that “[a] strategic attack on Ridling could of [sic] mounted an attack on

other corroborating witnesses.” Id. Finally, Mr. Pruitt challenges Ms. Ridling’s

ability to examine the victim without a current license—he states that Ms.

Ridling’s examination of the victim without a license “[wa]s just plain WRONG!”

Aplt. Appl. for Certificate of Appealability at 6.

      Mr. Pruitt’s ineffective-assistance-of-counsel claim is unexhausted because

it was not raised before the OCCA on direct appeal and Mr. Pruitt did not seek

state post-conviction relief. However, in addressing Mr. Pruitt’s ineffective-

assistance argument, the district court recognized that “[a]n application for a writ

of habeas corpus may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C.


                                          -6-
§ 2254(b)(2); accord Hoxsie v. Kerby, 108 F.3d 1239, 1242–43 (10th Cir. 1997).

Therefore, the court announced its intention to “address the claim on the merits”

and denied it. 4 R., Vol. I, at 256. We believe that reasonable jurists could not

debate the correctness of the district court’s conclusion.

      Under Strickland v. Washington, counsel provides ineffective assistance

when his representation does not meet “an objective standard of reasonableness,”

466 U.S. 668, 688 (1984), and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Even if we assume arguendo that

trial counsel’s failure to investigate Ms. Ridling or to object to her testimony was

objectively unreasonable, we conclude that Mr. Pruitt has failed to demonstrate

that the alleged “deficient performance prejudiced the defense, depriving him of a



      4
              The district court’s analysis of this claim is far from pellucid. In its
order, the court does not reference the controlling ineffective-assistance standard
of Strickland v. Washington, 466 U.S. 668 (1984). Further, in the section of its
order—which, based upon the heading, should be devoted to the discussion of Mr.
Pruitt’s ineffective-assistance claim—the court discusses, in virtually the same
breath, not only Mr. Pruitt’s ineffective-assistance claim, but also his entirely
distinct claim that he was entitled to a new trial based upon the newly discovered
evidence related to Ms. Ridling’s lack of licensure (a claim that we address infra).
We need not dwell on these analytic deficiencies of the district court’s order,
however. The district court purported to reach the merits of Mr. Pruitt’s
ineffective-assistance claim (and, in effect, did so), rather than dismissing it on
exhaustion grounds. And, as explicated infra, we are confident that reasonable
jurists could not debate the correctness of the court’s ultimate resolution of this
claim—that is, its decision to deny it.

                                         -7-
fair proceeding with a reliable result.” Gonzales v. Tafoya, 515 F.3d 1097, 1122

(10th Cir. 2008). The district court rejected Mr. Pruitt’s contention that there was

not sufficient evidence to support his conviction, a claim for which he has not

sought a COA. Viewing the evidence in the light most favorable to the

prosecution, the district court held that the OCCA’s determination that there was

sufficient evidence to support Mr. Pruitt’s conviction was consistent with federal

law. Our review of the record leads us to a similar conclusion. The evidence

against Mr. Pruitt—which included the victim’s own testimony and that of her

mother—was of such strength that he has failed to demonstrate a sufficient

probability that the outcome of his trial would have been different but for

counsel’s alleged errors relating to Ms. Ridling’s testimony. We therefore deny a

COA on this claim.

      Mr. Pruitt also seeks a COA to challenge the district court’s rejection of his

claim that he was entitled to a new trial based on newly discovered evidence. He

argues that the OCCA’s denial of his motion for a new trial violated his due

process rights. Under Oklahoma law, the OCCA will not grant relief on a motion

for a new trial based on newly discovered evidence unless, inter alia, a defendant




                                         -8-
was prejudiced by its omission and consequently deprived of a fair trial. 5 The

OCCA denied Mr. Pruitt’s motion for a new trial, holding that

              [t]he issue is not whether Ridling’s evidence at trial was
              material, but whether her lapsed licenses were material to the
              issues before the jury. . . . In any case, had these facts
              [regarding her lapsed license] been presented to the jury they
              would have gone to the weight of Ridling’s testimony, not its
              admissibility. . . . While Ridling’s testimony helped the
              State’s case, the State relied for the conviction on the victim’s
              testimony that Pruitt sexually abused her over a period of time.
              This testimony would have been unaffected by the new
              evidence about Ridling’s qualifications. Pruitt cannot show
              that the newly discovered evidence is either material or would
              have changed the trial’s outcome, and the motion should be
              denied.

R., Vol. I, at 54.

       The district court held that the OCCA’s determination was not contrary to

or an unreasonable application of federal law. We agree. Even if we were to

disregard Ms. Ridling’s testimony entirely, there was sufficient evidence to

support Mr. Pruitt’s conviction. In particular, there is no indication that the

newly discovered Ridling evidence created a reasonable probability that the

outcome of the trial would have been different had that evidence been introduced.

Cf. United States v. Redcorn, 528 F.3d 727, 745 (10th Cir. 2008) (in the context



       5
             See Sellers v. State, 973 P.2d 894, 895 n.12 (Okla. Crim. App. 1999)
(in denying motion for a new trial due to newly discovered evidence, stating that
“[a] defendant must show that the evidence is (1) material, (2) could not with due
diligence have been discovered before trial, (3) is not cumulative, and (4) creates
a reasonable probability that the outcome of the trial would have been different
had it been introduced.”).

                                          -9-
of a federal trial, holding that “the district court was not unreasonable to

conclude” that the newly discovered evidence “could [not] possibly be considered

so significant as to probably produce an acquittal” (internal quotation marks

omitted)). Reasonable jurists would not debate whether the district court

appropriately resolved this claim, and Mr. Pruitt has cited to no federal law

supposedly contrary to the OCCA’s determination. Accordingly, he is not

entitled to a COA on this claim.

      For the reasons discussed above, Mr. Pruitt has failed to make a substantial

showing of the denial of a constitutional right. We therefore DENY his

application for a COA and DISMISS this matter.



                                        ENTERED FOR THE COURT


                                        Jerome A. Holmes
                                        Circuit Judge




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