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

                             FOR THE TENTH CIRCUIT                                May 29, 2018
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
OMAR JAMON HILL,

      Petitioner - Appellant,
                                                               No. 17-6240
v.                                                     (D.C. No. 5:15-CV-00257-M)
                                                             (W.D. Oklahoma)
JOE M. ALLBAUGH, Director,

      Respondent - Appellee.
                      _________________________________

                              ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *
                       _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________



       Omar Jamon Hill seeks a certificate of appealability (COA) from the district

court’s denial of his pro se petition for federal habeas relief pursuant to 28 U.S.C.

§ 2254.1 For the reasons below, we deny a COA and dismiss this appeal.




       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
       1
        Because Mr. Hill appears pro se, we must construe his arguments liberally. See
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). However, we will not act as
Mr. Hill’s advocate, see id., and our liberal construction of his arguments does not relieve
him of “his burden of presenting sufficient facts to state a legally cognizable claim,” see
White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996).
                                    I.    BACKGROUND

       On November 21, 2010, M.R., the twenty-month-old daughter of Mr. Hill’s

girlfriend, died after suffering from blunt force trauma to her chest, abdomen, and back.

Mr. Hill claimed that M.R. had spent the morning downstairs with her five-year-old

brother, R.B., and four-year-old brother, I.B., and that by the time he went downstairs,

M.R. had already been injured and was unresponsive. Following an investigation, which

included forensic interviews of R.B. and I.B., the medical examiner ruled M.R.’s death a

homicide. The state charged Mr. Hill with first-degree murder and after trial, the jury

returned a verdict of guilty. The trial court sentenced Mr. Hill to life imprisonment. On

direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) upheld Mr. Hill’s

conviction and sentence. Hill v. State (Hill I), No. F-2012-204 (Okla. Crim. App. Mar.

14, 2014).

       Mr. Hill then filed a timely 28 U.S.C. § 2254 petition for federal habeas relief,

raising four claims: (1) ineffective assistance of counsel (IAC); (2) violation of due

process and the right to present a complete defense; (3) improper admission of opinion

testimony; and (4) cumulative error. Hill v. Allbaugh (Hill II), No. CIV-15-257-M, 2017

WL 4833486 (W.D. Okla. Aug. 22, 2017). With respect to his IAC claim, Mr. Hill

argued counsel was ineffective by: (1) failing to call R.B. and I.B. to testify at trial; (2)

failing to seek admission of R.B. and I.B.’s forensic interviews; (3) choosing to pursue a

defense that M.R.’s death resulted from an accidental fall and improper CPR; (4) failing

to object to improper prosecutorial comments; (5) failing to request a jury instruction on

the right of attorneys to interview witnesses; and (6) failing to rebut testimony regarding

                                               2
Mr. Hill’s reaction to M.R.’s death. Id. at *3–10. A Magistrate Judge reviewed Mr. Hill’s

petition and issued a Report and Recommendation (R&R) that found no grounds for

habeas relief and recommended that the district court deny the petition. Id. The district

court adopted the R&R, denied Mr. Hill’s habeas petition, and denied a COA.

                                      II.   ANALYSIS

       In Mr. Hill’s Combined Opening Brief and Application for a Certificate of

Appealability to this court, he raises only one claim: his counsel was ineffective by

failing to seek admission of the forensic interviews of R.B. and I.B.2

       Before this court may address the merits of his petition, Mr. Hill must obtain a

COA. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36

(2003). To obtain a COA, Mr. Hill must make “a substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484

(2000). A habeas petitioner makes this showing by demonstrating that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,” Slack, 529 U.S. at 484, or “that the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El, 537 U.S. at 336 (quotation marks omitted).



       2
         Mr. Hill has waived appellate review of the other issues presented in his habeas
petition to the district court by failing to address them in his briefing to this court. See
Tiger v. Workman, 445 F.3d 1265, 1267 n.1 (10th Cir. 2006) (“In his application for a
COA, Tiger lists all ten of the issues presented to the federal district court as ‘issues to be
raised on appeal.’ However, he presents argument only on the two jury instruction issues.
Thus, the other issues are waived.”); United States v. Springfield, 337 F.3d 1175, 1178
(10th Cir. 2003) (“Mr. Springfield has waived his challenge to the validity of the 1973
escape conviction that was used to enhance his federal sentence[] because he failed to
address that claim in either his application for a COA or his brief on appeal.”).
                                               3
       Because Mr. Hill’s argument was rejected on the merits by the OCCA, see Hill I,

slip op. at 3–4, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

applies. Under AEDPA, we may grant habeas relief only if the OCCA’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal law,”

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “[W]e

incorporate AEDPA’s deferential treatment of state court decisions into our consideration

of a habeas petitioner’s request for COA.” Davis v. McCollum, 798 F.3d 1317, 1319

(10th Cir. 2015) (internal quotation marks omitted).

       To support a claim of ineffective assistance of counsel, Mr. Hill “must show both

that his counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced the defense.’” See Byrd v. Workman, 645 F.3d

1159, 1167 (10th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687–88

(1984)). Under the first-prong of the Strickland test, Mr. Hill must show that his

counsel’s performance “amounted to incompetence under ‘prevailing professional

norms.’” See Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466

U.S. at 690). This is a highly deferential test, requiring the reviewing court to assess the

reasonableness of counsel’s actions “as of the time of counsel’s conduct” and “strongly

presume” that counsel’s conduct is objectively reasonable because it “might have been

part of a sound trial strategy.” Hanson v. Sherrod, 797 F.3d 810, 826 (10th Cir. 2015)

(quotation marks omitted). Furthermore, because we review this claim under AEDPA,



                                              4
Mr. Hill is entitled to habeas relief only if there is no reasonable argument that his

counsel satisfied Strickland. See Harrington, 562 U.S. at 105.

       Mr. Hill argues that his counsel was ineffective for failing to seek admission of

R.B. and I.B.’s forensic interviews as evidence. Because counsel cannot be ineffective for

failing to raise a meritless argument, see Sperry v. McKune, 445 F.3d 1268, 1275 (10th

Cir. 2006), Mr. Hill’s IAC claim fails unless he can show that the forensic interviews

were admissible. On direct appeal, the OCCA held that counsel was not ineffective

because the forensic interviews were inadmissible hearsay and the trial court would have

properly overruled any attempt to admit them into evidence. Hill I, slip op. at 3–4; see

Mitchell v. State, 120 P.3d 1196, 1203–04, 1206–07 (Okla. Crim. App. 2005) (holding

the trial court abused its discretion by admitting, under a hearsay exception, statements

made by a four-year-old in response to police questioning). On habeas review, the

Magistrate Judge found the OCCA’s conclusions were reasonable and that counsel did

not perform deficiently because it might have been sound trial strategy not to admit the

confusing and potentially prejudicial forensic interviews. Hill II, 2017 WL 4833486, at

*4.

       Mr. Hill has failed to show that the Magistrate Judge’s conclusion that the OCCA

acted reasonably is debatable among reasonable jurists. See Slack, 529 U.S. at 484. The

OCCA concluded the forensic interviews were inadmissible hearsay and failed to

demonstrate the sufficient indicia of trustworthiness required to satisfy Oklahoma’s

residual exception to the hearsay rule. Hill I, slip op. at 3–4 (citing Okla. Stat. tit. 12,

§ 2804.1(A)). Upon reviewing the forensic interviews at issue, we agree with the

                                                5
characterization of these statements as internally inconsistent, contradictory, and

potentially prejudicial. See id. at 3; Hill II, 2017 WL 4833486, at *3. Because there can

be no debate among reasonable jurists about whether Mr. Hill’s counsel performed in a

deficient manner, he is not entitled to a COA on this issue.3

                                  III.    CONCLUSION

       We DENY Mr. Hill’s request for a COA and DISMISS this appeal.

                                               Entered for the Court

                                               Carolyn B. McHugh
                                               Circuit Judge



       3
         To the extent Mr. Hill attempts to argue that his counsel was ineffective for
failing to call R.B. and I.B. at trial, this argument is waived, see Tiger, 445 F.3d at 1267
n.1, and would otherwise fail on the merits. Because the attorney for R.B. and I.B. had
prohibited interviews with the boys prior to trial, Hill v. Allbaugh (Hill II), No. CIV-15-
257-M, 2017 WL 4833486, at *4 (W.D. Okla. Aug. 22, 2017) (citing Trial Tr., vol. 1 at
19, 24, 28, 31–32), the forensic interviews of R.B. and I.B. are the best indicator of their
potential trial testimony. In reviewing this claim, the OCCA held that, given the “less
than credible[] and possibly damaging” statements in R.B. and I.B.’s forensic interviews,
“trial counsel’s decision against calling the boys as witnesses was sound trial strategy.”
Hill v. State, No. F-2012-204, slip op. at 3 (Okla. Crim. App. Mar. 14, 2014). The
Magistrate Judge concluded that the OCCA’s decision was not unreasonable, Hill II,
2017 WL 4833486, at *3, and Mr. Hill’s counsel “could have reasonably determined that
the risks of making such young children testify far outweighed the benefit of their
potential testimony,” id. at *4 (internal quotation marks omitted). Given the inconsistent
and confusing statements in the boys’ forensic interviews, see id. at *3 (citing Trial Ct.
Exs. 3 & 4), their young age, and counsel’s inability to interview them prior to having
them testify, no reasonable jurist could debate the accuracy of the Magistrate Judge’s
conclusion. See Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision
of which witnesses to call is quintessentially a matter of strategy for the trial attorney.”);
Parker v. Scott, 394 F.3d 1302, 1322 (10th Cir. 2005) (finding it was reasonable for
counsel not to call a victim’s six-year-old sister as a witness where her testimony could
have been detrimental to the defense and counsel was “unsure” what she would say).
Therefore, even if this claim had been raised, Mr. Hill would not be entitled to a COA.

                                              6
