                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               September 7, 2012
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 ISHMAEL VARGAS,

              Petitioner - Appellant,                  No. 12-6083
                                                (D.C. No. 5:11-CV-00554-R)
 v.                                                  (W.D. Oklahoma)
 DAVID MILLER, Warden,

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      Applicant Ishmael Vargas, an Oklahoma prisoner, filed a pro se application

for relief under 28 U.S.C. § 2254 in the United States District Court for the

Western District of Oklahoma. The district court denied the application.

Applicant seeks a certificate of appealability (COA) from this court to appeal the

denial. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a

§ 2254 application). We deny his application for a COA and dismiss the appeal.

I.    BACKGROUND

      A jury convicted Applicant of first-degree murder, and he was sentenced to

life imprisonment without the possibility of parole. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed his conviction and sentence on direct appeal.
He also sought state postconviction relief, but the state district court denied relief

and the OCCA affirmed.

      On May 16, 2011, Applicant filed his § 2254 application, raising eight

claims: (1) that the evidence at trial was insufficient to prove all the elements of

first-degree murder, (2) that he was denied a fair trial because the jury

instructions and the prosecutor’s arguments on voluntary intoxication did not state

the applicable law, (3) that the admission of character evidence violated his right

to due process and a fair trial under the United States and Oklahoma

Constitutions, (4) that the prosecutor improperly appealed to the jury’s sympathy

for the victim, violating Applicant’s right to due process under the United States

and Oklahoma Constitutions, (5) that the trial court deprived him of a fair trial by

defining, and allowing the prosecutor to argue, an incorrect concept of reasonable

doubt, (6) that his trial counsel rendered constitutionally ineffective service in

violation of the United States and Oklahoma Constitutions, (7) that cumulative

error deprived him of due process under the United States and Oklahoma

Constitutions, and (8) that his appellate counsel rendered constitutionally

ineffective service in violation of the United States and Oklahoma Constitutions

by failing to raise the seven above grounds for relief.

      In a Supplemental Report and Recommendation (the R&R), the magistrate

judge recommended that Applicant’s claims be denied. Despite Applicant’s




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objections to the R&R, the district court adopted the R&R in its entirety and

denied relief.

      In this court Applicant argues that the district court (1) “misconstrued the

facts and applied an erroneous conclusion of law,” Aplt. Br. at 6 (capitalization

omitted), (2) “failed to apply a liberal construction to [his] pleadings,” id. at 7

(capitalization omitted), and (3) erred in denying him relief without granting or

making reference to his request for an evidentiary hearing. He asks that we

reverse his conviction and sentence or, in the alternative, remand his case to the

district court for an evidentiary hearing.

II.   DISCUSSION

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [application] 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 omitted).

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

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clearly established Federal law, as determined by the Supreme Court of the

United States,” or “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)(1), (2). “AEDPA’s deferential treatment of state court decisions must

be incorporated into our consideration of [Applicant’s] request for [a] COA.”

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      Applicant first argues that the district court misconstrued the facts and

applied an erroneous conclusion of law. We disagree. The magistrate judge’s

R&R thoroughly and cogently explained why all of Applicant’s claims should be

denied. For each federal claim, the R&R identified the applicable Supreme Court

law, summarized the OCCA’s reasons for denying the claim, and correctly

concluded that the OCCA’s decision was neither contrary to nor involved an

unreasonable application of federal law.

      Applicant’s next argument is that the district court did not liberally

construe his pleadings. Although his application for a COA fails to point to any

allegation in his pleadings that was not properly construed by the district court, it

does reference his objections to the R&R, which contend that the magistrate judge

failed to construe liberally his ineffective-assistance-of-appellate-counsel claim.

But the district court correctly discerned no error in this regard, and, more

importantly, correctly ruled that the ineffectiveness claim has no merit.




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       Finally, Applicant argues that the district court erred by denying relief

without conducting an evidentiary hearing. But such a hearing was unnecessary

to resolve Applicant’s claims. The court’s dismissal of the claims implicitly

rejected any request for an evidentiary hearing, although we note that Applicant’s

§ 2254 application does not appear to make such a request.

III.   CONCLUSION

       No reasonable jurist could debate the correctness of the district court’s

resolution of Applicant’s claims. We DENY the application for a COA and

DISMISS the appeal. We GRANT the motion to proceed in forma pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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