                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 5, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 BENNIE A. COOPER, JR.,

       Petitioner - Appellant,
                                                        No. 11-6314
 v.                                              (D.C. No. 5:10-CV-00075-R)
                                                        (W.D. Okla.)
 JUSTIN JONES,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Petitioner-Appellant Bennie Cooper, Jr., a state inmate proceeding pro se,

seeks a certificate of appealability (“COA”) so that he may appeal the district

court’s denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. To

obtain a COA, Mr. Cooper must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, he must show

“that reasonable jurists could debate whether (or, for that matter, agree that) the

petition 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 quotations omitted). Where denial

of a claim rests on procedural grounds, a petitioner must show that the claim on
the merits is reasonably debatable, as is the district court’s procedural ruling. Id.

Finding these showings lacking, we deny a COA and dismiss the appeal.



                                    Background

      Mr. Cooper was convicted of various state offenses relating to sexually

abusing his stepdaughter and sentenced to seven consecutive terms of life

imprisonment. On direct appeal, he claimed that (1) he was denied due process

when the police failed to preserve potentially exculpatory evidence, (2) his

convictions for rape, sodomy, kidnapping, and assault constituted double jeopardy

and double punishment, (3) he was denied due process when the prosecutor failed

to disclose exculpatory evidence to the defense, (4) he was prejudiced by attempts

to comment on his pre- and post-arrest silence, (5) the jury should not have been

allowed to take taped conversations between him and his wife into deliberations,

and (6) cumulative error denied him a fair trial. The Oklahoma Court of Criminal

Appeals (OCCA) affirmed the judgment, on the merits, with respect to each

argument. 1 R. 637-40; Cooper v. State, No. F-2007-756, Summary Opinion

(Okla. Crim. App. Aug. 28, 2008).

      Mr. Cooper again raised these claims in his § 2254 petition before the

federal district court, as well as a seventh unexhausted (and likely procedurally

barred) claim that he was denied counsel during critical stages of the proceedings,

specifically during execution of a search warrant and during arraignment.

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Ultimately, Mr. Cooper amended his petition to drop the unexhausted claim,

having failed to convince the district court to stay the proceedings pending his

efforts to exhaust.

      On the merits, the magistrate judge recommended that Mr. Cooper’s

amended petition be dismissed and warned Mr. Cooper that failure to object to

that recommendation could result in waiver of one or more claims. 1 R. 722, 735.

Mr. Cooper objected to the recommendation only as it related to two of his

original six claims; as a result, the remaining claims were waived. See Duffield

v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008). Mr. Cooper’s objections

related to his first and third claims of error, that (1) the magistrate judge failed to

address an argument relating to Sixth Amendment assistance of counsel, and (2)

the prosecution violated his Fifth and Fourteenth Amendment rights by failing to

disclose potentially exculpatory evidence, respectively. The district court adopted

the magistrate’s recommendation and dismissed Mr. Cooper’s § 2254 petition.

      On appeal, Mr. Cooper argues that the district court erred by (1) denying

his motion to stay proceedings pending state-court exhaustion of his seventh

claim and (2) rejecting his objections to the magistrate judge’s recommendation.



                                      Discussion

      To obtain habeas relief, a habeas petitioner must exhaust state remedies.

28 U.S.C. § 2254(b)(1)(A). Whether to grant a stay and abeyance when a

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petitioner has failed to exhaust state remedies on a particular claim is a matter of

district court discretion. Rhines v. Weber, 544 U.S. 269, 276-79 (2005). The

district court denied Mr. Cooper’s motion to stay the proceedings on the grounds

that his seventh claim lacked merit and should have been raised before the OCCA

earlier. 1 R. 530. Mr. Cooper argues that the latter finding is inconsistent with

the district court’s finding that the claim was diligently pursued, at least for

purposes of statutory tolling, 28 U.S.C. § 2244(d)(2), which allowed Mr. Cooper

to file his federal habeas petition beyond the apparent deadline. No reasonable

jurist could find an abuse of discretion in the district court’s procedural ruling:

Mr. Cooper knew of the claim in 2005, well before he sought to raise it in state-

court post-conviction proceedings in November 2009. 1 R. 530. No evidentiary

hearing was warranted, and the district court did not abuse its discretion.

      Mr. Cooper next argues that he adequately raised his denial of counsel

claims in his first proposition of error. Having reviewed what was argued in state

court, it is apparent that, while Mr. Cooper equated the lack of counsel to bad

faith destruction of evidence, he plainly pinned the blame on law enforcement. 1

R. 17-18. In rejecting that proposition, the OCCA held that the evidence was

properly tested by law enforcement, the evidence was not material, and no

showing of bad faith was made. 1 R. 638. Mr. Cooper’s current argument—that

his not having appointed counsel allowed the state to destroy potentially

exculpatory evidence—was not fairly presented in state court. Neither the district

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court’s recognition of this fact, nor its resolution of his original argument on the

merits, is reasonably debatable.

      Consistent with his third proposition of error, Mr. Cooper argues that the

prosecution failed to disclose potentially exculpatory evidence, in violation of

Brady v. Maryland, 373 U.S. 83 (1963). The OCCA addressed this argument and

concluded that Mr. Cooper had not “demonstrated how the evidence in question

was favorable and material to the defense.” 1 R. 639. Federal courts must defer

to state court proceedings on this issue unless they “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law” or “resulted in a decision that 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). Moreover, factual findings made by

state courts are presumed correct unless the presumption is rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). The magistrate judge and district

court agreed with the OCCA that Mr. Cooper had not adequately explained why

the evidence at issue was material and favorable, and further noted that the

evidence at issue actually supported the victim’s testimony. Mr. Cooper now

argues that the evidence would have supported his testimony in his own defense.

But Mr. Cooper did not testify during the trial in which he was convicted, and his

explanation for why the evidence would be material and favorable before the

OCCA, the magistrate judge, and the district court was not sufficiently persuasive

                                         -5-
to make the showing required under Brady. The district court’s conclusion on

this point, particularly given the deference we afford state court resolutions, is not

reasonably debatable.

       We DENY a COA, DENY IFP status, and DISMISS Mr. Cooper’s appeal.



                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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