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

                            FOR THE TENTH CIRCUIT                         November 27, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DONALD RAY DAVES,

      Petitioner - Appellant,

v.                                                          No. 15-8087
                                                  (D.C. No. 1:13-CV-00280-SWS)
EDDIE WILSON, Warden, Wyoming                                (D. Wyo.)
State Penitentiary,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

                                    BACKGROUND

      A Wyoming jury convicted Donald Daves of four counts of first-degree sexual

assault; five counts of using a firearm while committing a felony; and one count each

of aggravated assault and battery, possession of a deadly weapon, and kidnapping.

After his direct appeal and subsequent efforts to obtain state post-conviction relief

proved unsuccessful, Daves sought federal relief under 28 U.S.C. § 2254.

      Respondent moved for summary judgment, and the district court granted the

motion. It then dismissed Daves’ § 2254 petition and denied a Certificate of


      *
         This order and judgment is not binding precedent, except under the doctrines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.
Appealability (COA). Proceeding pro se, Daves asks us for a COA so he can appeal

the district court’s order dismissing his habeas petition. Because we conclude

reasonable jurists wouldn’t find the district court’s assessment of Daves’ claims

debatable or wrong, we deny a COA and dismiss the appeal.

                                      DISCUSSION

      We may 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). “Where a district court

has rejected the constitutional claims on the merits, the showing required to satisfy

§ 2253(c) is straightforward: The petitioner 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). When a district court instead

denies a habeas petition on procedural grounds, the petitioner must demonstrate “that

jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. (emphasis added).

Finally, because Daves is a state prisoner seeking habeas relief, we must incorporate

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

[his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).




                                            2
I.    Definition of “Use”

      Daves first argues the trial court erred in instructing the jury on the definition

of “use” for purposes of Wyo. Stat. Ann. § 6-8-101,1 which imposes an additional

term of imprisonment when a person “uses a firearm while committing a felony.” To

succeed on his instructional claim at this stage, it’s not enough for Daves to show the

challenged instruction was wrong. Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th

Cir. 1997). Instead, he “must show that, in the context of the entire trial, the error in

the instruction was so fundamentally unfair as to deny [him] due process.” Tiger v.

Workman, 445 F.3d 1265, 1267 (10th Cir. 2006).

       In response to a question from the jury, the trial court gave the following

supplemental instruction defining “use”:

       As a general proposition, a firearm is “used” if [it] is available to
       facilitate the underlying offense, and it is not required that the weapon
       be actually brandished or fired. One method in which a firearm may be
       used is to protect the underlying criminal enterprise. Further, a firearm
       can be used as a device to embolden or lend courage to the actor, or as a
       device to intimidate the alleged victim.

Daves v. State, 249 P.3d 250, 254 (Wyo. 2011).

       In his direct appeal, Daves argued the instruction “allow[ed] the jury to

convict him even if they [sic] found he merely possessed, or even constructively

      1
        As part of his instructional argument, Daves suggests § 6-8-101 is
unconstitutionally vague. He also argues that trial counsel was ineffective in failing
to object to the supplemental instruction defining “use.” Because he did not raise
these arguments in his § 2254 petition, we decline to address them in the context of
his application for COA. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012) (declining to consider defendant’s request for COA based on issues defendant
did not present to district court).

                                            3
possessed, the gun without actively employing it in the commission of the predicate

felonies.” Id. at 256. The Wyoming Supreme Court rejected this argument,

concluding, “The entire tenor of the instruction indicates that the ‘use’ contemplated

by the statute had to be in the context of actually facilitating the crime.” Id. In any

event, the court pointed out, the evidence established Daves “‘used’ the firearm in

accordance with the plain definition of the term by employing it for the purpose of

making the victim submit to his will.” Id. Thus, the court concluded, Daves wasn’t

prejudiced by the instruction.2 Id.

      The federal district court rejected Daves’ instructional claim because Daves

“offered neither evidence nor argument to support a finding the ‘use of a firearm’

instruction ‘so infected the trial’ as to deny him due process.” Ord. Dismissing Pet.,

Doc. 42, at 20-21. Because Daves provides no argument that “demonstrate[s] . . .

reasonable jurists would find [this] assessment . . . debatable or wrong,” we deny a

COA on this claim. Slack, 529 U.S. at 484.


      2
         The Wyoming Supreme Court reviewed Daves’ instructional argument for
plain error, concluding defense counsel failed to object to the proposed supplemental
instruction. Daves, 249 P.3d at 255. To the extent we might read Daves’ application
for COA as suggesting this conclusion constitutes an unreasonable determination of
the facts for purposes of 28 U.S.C. § 2254(d)(2), we reject that argument. The
Wyoming Supreme Court acknowledged that, “[a]t first, defense counsel stated that
he did not believe the jury needed to be instructed on the definition” and that the
court should instead instruct the jury “to ‘use their common understanding of the
word.’” Id. at 254-55. But once the district court decided on the language of the
written instruction, “defense counsel did not object.” Id. at 254. To the extent Daves
suggests the Wyoming Supreme Court erred in concluding defense counsel’s initial
reservations were insufficient to constitute an objection to the language of the
instruction, that argument challenges a legal conclusion, not a factual finding subject
to review under § 2254(d)(2).
                                            4
II.    Supplemental Instruction Procedures

       In a related argument, Daves asserts the trial court violated his due process

rights by (1) failing to ensure his presence at a conference on the supplemental jury

instruction; and (2) providing the jury with a written supplemental instruction, rather

than instructing the jury in open court with Daves in attendance.

       “[T]he presence of a defendant is a condition of due process to the extent that

a fair and just hearing would be thwarted by his absence, and to that extent only.”

Snyder v. Com. of Mass., 291 U.S. 97, 107-08 (1934), overruled in part on other

grounds by Malloy v. Hogan, 378 U.S. 1 (1964). Citing this general rule, we have

declined to find a due process violation when (1) the defendant wasn’t present during

a jury instruction conference at which counsel and the court discussed purely legal

matters; and (2) the court subsequently submitted a written response to the jury’s

question outside of the defendant’s presence. See Esnault v. People of State of Colo.,

980 F.2d 1335, 1336-37 (10th Cir. 1992).

       Citing Esnault, the federal district court concluded Daves’ due process claim

did not entitle him to relief. Because reasonable jurists wouldn’t find this conclusion

debatable or wrong, we deny a COA on this claim.

III.   Failure to Re-arraign

       Next, Daves claims the trial court violated his due process rights by failing to

re-arraign him after the state amended the sexual assault charges prior to trial.




                                            5
According to Daves, the court’s failure to re-arraign him deprived the court of

personal jurisdiction.3

      Citing Rios v. State, 733 P.2d 242 (Wyo. 1987), the state district court rejected

this argument. Under Rios, “[a] state obtains personal jurisdiction over an accused by

his physical presence before the court without regard to the manner in which that

presence was obtained.” Id. at 244. The federal district court agreed. Because Daves

fails to demonstrate reasonable jurists would find this conclusion debatable or wrong,

we deny a COA on this claim.

IV.   Use of the Word “Force” in the Jury Instructions

      The trial court’s instructions on the sexual assault charges asked the jury to

decide, in part, whether Daves (1) “[i]nflicted sexual intrusion” on the victim “by

forcing her to” perform oral sex and engage in sexual intercourse, and (2) “[c]aused

submission of [the victim] by threatening to inflict death or serious bodily injury on

anyone.” Attachment to Br., Doc. 2-3, at 142, 149, 151, 153. Daves argues these

instructions improperly combined the elements of Wyo. Stat. Ann. § 6-2-302(a)(i)

(which applies when a defendant “causes submission of the victim through the actual

application . . . of physical force”) and Wyo. Stat. Ann. § 6-2-302(a)(ii) (which

applies when a defendant “causes submission of the victim by threat of death, serious

bodily injury, extreme physical pain or kidnapping to be inflicted on anyone”).


      3
         In his application for COA, Daves suggests trial counsel was ineffective in
neglecting to object to the trial court’s failure to re-arraign him. Because Daves
didn’t advance that argument before the federal district court, we decline to address
it. See Viera, 674 F.3d at 1220.
                                           6
According to Daves, this alleged hybridization violated his rights under the Due

Process Clause and the Ex Post Facto Clause of the United States Constitution.

      The state district court4 rejected this argument, reasoning that both subsections

of Wyo. Stat. Ann. § 6-2-302(a) require a defendant to cause the victim to submit,

whether by physical force as contemplated by § 6-2-302(a)(i), or by constructive

force as contemplated by § 6-2-302(a)(ii). Thus, the state district court concluded, the

instructions’ reference to force accurately described the elements of § 6-2-302(a)(ii).

      We agree with the federal district court that Daves has not demonstrated this

instruction “was so fundamentally unfair as to deny [him] due process.” Tiger, 445

F.3d at 1267. Thus, we deny a COA on this claim.

V.    Double Jeopardy

      Next, Daves asserts the trial court violated his rights under the Double

Jeopardy Clause. Daves’ double-jeopardy argument has morphed over time. In his

§ 2254 petition, he argued the trial court violated the Double Jeopardy Clause by

using his convictions for sexual assault and use of a firearm to enhance his sentence

for kidnapping under Wyo. Stat. Ann. § 6-2-201(d), which imposes an enhanced

punishment “[i]f the defendant does not voluntarily release the victim substantially

unharmed and in a safe place prior to trial.” According to Daves’ § 2254 petition, the

trial court impermissibly allowed the jury to rely on his use of a firearm and his


      4
         After the state district court denied relief, Daves filed a petition for writ of
review with the Wyoming Supreme Court. The Wyoming Supreme Court summarily
denied the petition, stating only that Daves failed to identify any error in the state
district court’s order denying relief.
                                            7
sexual assault of the victim to conclude he didn’t release the victim “substantially

unharmed” for purposes of § 6-2-201(d).

        In his application for COA, however, Daves abandons this argument and

instead insists his convictions for sexual assault and use of a firearm to commit a

felony must merge because the threats he used to cause the victim’s submission for

purposes of the sexual assault convictions “could not have been accomplished

without the use of the firearm.” Aplt. Br. at 14. Because Daves didn’t raise this

argument in his § 2254 petition, we won’t address it here. See Viera, 674 F.3d at

1220.

VI.     Ineffective Assistance of Counsel Based on Mental Deficiency

        In his sixth claim for relief,5 Daves argues appellate counsel was ineffective in

neglecting to assert, on direct appeal, that trial counsel was ineffective in failing to

argue Daves was incompetent to stand trial and be sentenced. Both the state district

court and the federal district court rejected this claim because, while Daves may have

suffered from depression and drug and alcohol abuse, there was no indication he

“lack[ed] the capacity” to “[c]omprehend his position,” “[u]nderstand the nature and

object of the proceedings against him,” “[c]onduct his defense in a rational manner,”




        5
        Daves lists eight claims in his application for a COA, but he provides
argument and authorities to support only seven. We confine our analysis to the claims
Daves’ sufficiently briefs. See Utahns for Better Transp. v. U.S. Dep’t of Transp.,
305 F.3d 1152, 1175 (10th Cir. 2002) (“We do not consider merely including an issue
within a list to be adequate briefing.”), modified on other grounds on reh’g, 319 F.3d
1207 (10th Cir. 2003).
                                             8
or “[c]ooperate with his counsel to the end that any available defense m[ight] be

interposed” as required by Wyo. Stat. Ann. § 7-11-302.

       In his application for COA, Daves fails to provide any additional information

or argument to establish reasonable jurists would find this conclusion debatable or

wrong. We deny a COA on this claim.

VII. Ineffective Assistance of Counsel Based on Failure to Present a Complete
     Defense

       In his § 2254 petition, Daves argued appellate counsel was ineffective in

failing to assert trial counsel was ineffective in neglecting to (1) raise a Batson claim;

(2) challenge the allegation of oral sex; and (3) investigate alleged Miranda

violations. The federal district court found all three arguments unexhausted and

procedurally defaulted because Daves either failed to present them to the state district

court in his petition for post-conviction relief or to the Wyoming Supreme Court in

his petition for writ of review, and because those claims would now be procedurally

barred in state court. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (“[I]f

the petitioner failed to exhaust state remedies and the court to which the petitioner

would be required to present his claims in order to meet the exhaustion requirement

would now find the claims procedurally barred . . . there is a procedural default for

purposes of federal habeas . . . .”).

       Daves argues in his application for COA that he did, in fact, raise these

arguments in state court. But in support, he cites only his petition for writ of review.

Because Daves doesn’t suggest he raised these arguments in his state petition for


                                            9
post-conviction relief, he fails to demonstrate that reasonable jurists “would find it

debatable whether the district court was correct in its procedural ruling.” Slack, 529

U.S. at 484 (2000). Accordingly, we deny a COA on this claim as well.

                                     CONCLUSION

      Because we conclude reasonable jurists would not find the district court’s

assessment of Daves’ claims debatable or wrong, we deny a COA and dismiss the

appeal.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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