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

                                                             December 18, 2015
                        FOR THE TENTH CIRCUIT
                        _________________________________   Elisabeth A. Shumaker
                                                                Clerk of Court
KENT G. SAVAGE,

       Petitioner-Appellant,

v.                                                  No. 15-6185
                                            (D.C. No. 5:14-CV-00764-HE)
JASON BRYANT, Warden,                               (W.D. Okla.)

       Respondent-Appellee.

                        _________________________________

     ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
                  DISMISSING THE APPEAL
                  _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                  _________________________________



      Three young girls (whom we refer to as O.S., M.S., and A.H.)

accused Mr. Kent Savage of sexual misconduct. These accusations led to a

state court conviction of Mr. Savage on charges of indecent or lewd acts

with a child under 16, first-degree rape by instrumentation, and exhibition

of obscene material to a minor child. Mr. Savage unsuccessfully sought

habeas relief in federal district court. Seeking to appeal, Mr. Savage

requests a certificate of appealability. The Court denies this request and

dismisses the appeal.
1.    We can issue a certificate of appealability only if Mr. Savage’s
      appeal points are reasonably debatable.
      To justify a certificate of appealability, Mr. Savage must make a

“substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). This showing exists only if reasonable

jurists could regard the district court’s disposition as debatable or wrong.

See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).

      We apply this standard against the backdrop of Mr. Savage’s

underlying burden to justify habeas relief. See Miller-El v. Cockrell, 537

U.S. 322, 336 (2003) (stating that when deciding whether to grant a

certificate of appealability, the court “look[s] to the District Court’s

application of [the Antiterrorism and Effective Death Penalty Act] to

petitioner’s constitutional claims and ask[s] whether that resolution was

debatable amongst jurists of reason”). This burden is steep where, as here,

the state appeals court has rejected the claim on the merits. In that

circumstance, the petitioner must show that the state appeals court’s

decision was contrary to, or an unreasonable application of, Supreme Court

precedent. 28 U.S.C. § 2254(d)(1) (2012).

2.    Mr. Savage has not presented a reasonably debatable appeal point
      under the Confrontation Clause.

      The three young accusers testified at the trial. According to Mr.

Savage, the state trial court violated the right of confrontation by allowing

the three girls to testify about out-of-court statements. The federal district

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court rejected this claim, and Mr. Savage’s appeal point is not reasonably

debatable.

      The Supreme Court has held that the right of confrontation is not

violated when

            a declarant testifies about out-of-court statements as a witness
             and

            the declarant is “subject to full and effective cross-
             examination.”

California v. Green, 399 U.S. 149, 158 (1970). As the district court

explained, the three girls testified at the trial and underwent cross-

examination by Mr. Savage’s counsel.

      In light of this opportunity for cross-examination, the state appeals

court rejected Mr. Savage’s argument on the merits. Thus, if we were to

entertain an appeal on this issue, we could reverse the denial of habeas

relief only if the state appeals court’s decision contradicted or

unreasonably applied Supreme Court precedent. 28 U.S.C. § 2254(d)(1)

(2012). Under this rigorous standard, Mr. Savage’s appeal point is not

reasonably debatable.

      Mr. Savage concedes that the girls were available for trial, but argues

that they could not be cross-examined because they

            were unable to remember what had happened or

            refused to testify.



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         The alleged memory loss would not support habeas relief, for the

Supreme Court has never held that a witness’s memory lapse constitutes an

inability to cross-examine. See United States v. Owens, 484 U.S. 554, 559

(1988) (holding that the opportunity for cross-examination is not denied,

for purposes of the Confrontation Clause, when a witness testifies about a

current belief but cannot remember the reasons for that belief); see also

United States v. McHorse, 179 F.3d 889, 900 (10th Cir. 1999) (“Neither we

nor the Supreme Court . . . has ever held that a witness’ lack of

recollection does not constitute an inability to cross-examine.”)

         In addition, Mr. Savage contends that the girls made themselves

unavailable for cross-examination by refusing to testify. But all of the girls

did testify. Before the trial, O.S. and M.S. had said they would not testify,

but both girls did eventually testify. In the absence of any refusal to testify

during the trial, no reasonable jurist could question the district court’s

ruling based on a conflict with Supreme Court precedent.

         As a result, we decline to issue a certificate of appealability on this

issue.

3.       Mr. Savage has not presented a reasonably debatable appeal point
         based on insufficiency of the evidence.

         Mr. Savage contends that without the girls’ out-of-court statements,

the evidence of guilt would have been insufficient. But, as discussed

above, the Court has no reason to disregard the girls’ out-of-court


                                          4
statements. And with them, Mr. Savage does not question the sufficiency

of the evidence. As a result, we decline to issue a certificate of

appealability on this issue.

4.    Mr. Savage has not presented a reasonably debatable appeal point
      based on denial of the opportunity to present a defense.
      The accusations against Mr. Savage involved sexual abuse in

Oklahoma. Before O.S. moved to Oklahoma, she had lived in Florida. Mr.

Savage’s attorney wanted to present evidence involving O.S.’s life in

Florida. According to Mr. Savage, this evidence would have shown that

O.S. had suffered sexual abuse and “acted out” before moving to

Oklahoma.

      The trial court excluded this evidence as irrelevant, and the state

appeals court upheld the ruling. In the habeas petition, Mr. Savage claimed

that the exclusion of evidence had denied him the opportunity to present a

defense. The federal district court could grant habeas relief only if the

state appeals court’s decision contradicted or unreasonably applied

Supreme Court precedent. 28 U.S.C. § 2254(d)(1) (2012). The federal

district court rejected the habeas claim. In our view, that decision is not

reasonably debatable; and we decline to issue a certificate of appealability

on this issue.




                                      5
5.    Mr. Savage has not presented a reasonably debatable appeal point
      based on erroneous introduction of expert testimony.

      In addition, Mr. Savage claimed in the habeas petition that the state

trial court had erroneously allowed expert testimony by Susan Rider and

John Minton. Ms. Rider had interviewed two of the girls (O.S. and A.H.),

and Mr. Minton had interviewed the third girl (M.S.). At trial, Ms. Rider

and Mr. Minton were allowed to testify that children often recant

accusations of misconduct. In appealing the conviction, Mr. Savage

claimed that this testimony had constituted an evidentiary harpoon. The

state appeals court rejected this appeal point, reasoning that the opinions

had been elicited by Mr. Savage’s counsel in his questioning.

      If we were to entertain an appeal, we could reverse only if the state

appeals court’s decision contradicted or unreasonably applied Supreme

Court precedent. 28 U.S.C. § 2254(d)(1) (2012). The federal district court

concluded that Mr. Savage had not satisfied that burden. In our view, that

conclusion is not reasonably debatable; as a result, we decline to issue a

certificate of appealability on this issue.

6.    Mr. Savage has not presented a reasonably debatable appeal point
      based on ineffective assistance of trial counsel.
      In the habeas petition, Mr. Savage claimed that trial counsel had

been ineffective in failing to object to expert testimony by Ms. Rider and

Mr. Minton. To prevail, Mr. Savage needed to show that the state appeals

court had contradicted or unreasonably applied Supreme Court precedent.

                                       6
28 U.S.C. § 2254(d)(1) (2012). Under Supreme Court precedent, Mr.

Savage needed to show that trial counsel’s failure to object was

unreasonable and prejudicial. See Strickland v. Washington, 466 U.S. 668,

687-88, 691-92 (1984).

      On direct appeal, the state appeals court held that the lack of an

objection was not prejudicial, reasoning in part that the testimony was

admissible. Relying in part on this holding, the federal district court

denied habeas relief.

      The state appeals court is the final arbiter of admissibility under

state law. See Wilkens v. Newton-Embry, 288 F. App’x 526, 530 (10th Cir.

2008) (“The OCCA is the final arbiter of what Oklahoma law requires.”).

In light of that court’s decision that the underlying testimony was

admissible under state law, a trial objection would likely have proven

futile. In these circumstances, any reasonable jurist would conclude that

the state appeals court’s decision constituted a reasonable application of

Supreme Court precedent. As a result, we decline to issue a certificate of

appealability on this issue.

7.    Mr. Savage has not presented a reasonably debatable appeal point
      based on cumulative error.
      Finally, Mr. Savage alleges cumulative error. The federal district

court rejected this allegation, reasoning that none of the constitutional

claims were valid. In our view, this conclusion was not reasonably


                                      7
debatable. As a result, we decline to issue a certificate of appealability on

this issue.

8.    Mr. Savage has not presented a reasonably debatable appeal point
      based on a failure to properly consider state evidence law.

      Mr. Savage also contends that the district court improperly applied

state evidence law regarding hearsay testimony by children who allege

abuse. To obtain a certificate of appealability, however, Mr. Savage must

make a “substantial showing of the denial of a constitutional right.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Mr. Savage’s contention

fails because his argument about state evidence law, even if true, would

not establish the denial of a federal constitutional right.

      Oklahoma law generally prohibits hearsay testimony, but an

exception allows out-of-court statements by children 12 and under who

claim that they have been abused. Oklahoma Evidence Code, Okla. Stat.

tit. 12 § 2802, 2803.1(A) (2011). Under this exception, the out-of-court

statements are admissible if the child testifies, is available to testify, or is

unavailable. Oklahoma Evidence Code, Okla. Stat. tit. 12 § 2803.1(A)(2),

(A)(2)-(3) (2011). A child is considered “unavailable” for purposes of this

exception if unable to testify because of an inability to remember what

happened. See Okla. Stat. tit. 12 §§ 2803.1(A)(2), 2804(A)(3) (2011).

      Applying this exception, the state trial court allowed introduction of

out-of-court statements by the three girls. The state appeals court upheld


                                        8
the trial court’s ruling, determining that the girls were available to testify

for purposes of Oklahoma evidence law. The federal district court

characterized the appeals court’s decision as a factual finding and

presumed under federal law that this finding was correct. See 28 U.S.C.

§ 2554(e)(1) (2012).

      Mr. Savage argues that the girls were unavailable because during the

trial, they could not remember what had happened. Because the girls were

effectively unavailable during the trial, Mr. Savage maintains, the use of

the out-of-court statements violated his right to confrontation.

      This argument fails because it conflates “availability” for purposes

of the Oklahoma hearsay exception with “availability” for purposes of the

Confrontation Clause. For the sake of argument, we may assume that Mr.

Savage is correct that


           the girls were “unavailable” for purposes of Oklahoma
            evidence law and

           the state appeals court erred by holding otherwise.

To obtain a certificate of appealability, Mr. Savage would still need to

make a substantial showing of a constitutional right. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2002). Thus, a certificate of appealability is

unavailable when the claim rests on state law rather than the U.S.

Constitution. Lopez v. Trani, 628 F.3d 1228, 1231-32 (10th Cir. 2010).

And we have already concluded that introduction of the girls’ out-of-court

                                       9
statements did not violate the Confrontation Clause. The designation of

these witnesses as either “available” or “unavailable” under Oklahoma

evidence law does not bear on the constitutional issue.

      At most, Mr. Savage’s reliance on the Oklahoma evidence code

suggests a misapplication of Oklahoma state law, not denial of a federal

constitutional right. Thus, we decline to issue a certificate of appealability

based on the federal district court’s consideration of state evidence law.

9.    Disposition

      We deny a certificate of appealability. Because the certificate is

necessary for Mr. Savage to appeal, we dismiss the appeal. See Miller-El v.

Cockrell, 537 U.S. 322, 335-36 (2003) (stating that a certificate of

appealability is a jurisdictional requirement for a state prisoner to appeal

from the denial of habeas relief).


                                     Entered for the Court




                                     Robert E. Bacharach
                                     Circuit Judge




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