                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       September 18, 2013
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                     TENTH CIRCUIT


 DAVID HUGO JOHNSON,

                 Petitioner - Appellant,

           v.                                                  No. 13-5060
                                                   (D.C. No. 4:10-CV-00301-GKF-PJC)
 MARVIN VAUGHN, Warden                                         (N.D. Okla.)

                 Respondent - Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. Petitioner was convicted

by an Oklahoma jury of one count of burglary and one count of attempted burglary. He

was sentenced to seven years’ imprisonment on the burglary count and three-and-a-half

years’ imprisonment on the attempted burglary count, to run consecutively. Petitioner

filed a direct appeal in the Oklahoma Court of Criminal Appeals. The OCCA affirmed

Petitioner’s conviction and denied his request for an evidentiary hearing. Petitioner then

filed the instant § 2254 habeas petition.


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       In his federal habeas petition, Petitioner raised six grounds of error, each of which

had been presented to and rejected by the OCCA. Petitioner argued: (1) the joinder of

the two counts against him was improper and prejudiced the jury against him; (2) he

received ineffective assistance of trial counsel based on several alleged deficiencies in his

trial counsel’s performance; (3) the district court erred in admitting evidence of one of the

victims’ injuries following and resulting from the alleged burglary; (4) Petitioner was

deprived of his right to a fair trial by cumulative error; (5) appellate counsel had a conflict

of interest that rendered his representation of Petitioner on appeal ineffective; and (6)

appellate counsel was ineffective in failing to raise a claim of prosecutorial misconduct

on direct appeal.1 The district court concluded that, to the extent Petitioner’s arguments

raised federal constitutional claims, the state court had not unreasonably applied Supreme

Court precedent in rejecting these claims. The district court accordingly denied the

petition for relief under 28 U.S.C. § 2254(d)(1).

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of

Petitioner’s habeas petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner

additionally challenges the district court’s refusal to hold an evidentiary hearing and to

appoint counsel. However, the district court correctly denied an evidentiary hearing



       1
         On direct appeal to the OCCA, Petitioner raised the fifth and sixth arguments in a
pro se supplemental brief. The OCCA considered and rejected these claims in the same
order considering the claims raised by Petitioner’s appellate counsel.

                                              -2-
because the OCCA rejected Petitioner’s claims on the merits. See Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011) (holding “that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on the merits”). And we

see no error in the district court’s decision not to appoint counsel—a “decision [that] is

left to the sound discretion of the district court.” Engberg v. Wyoming, 265 F.3d 1109,

1122 (10th Cir. 2001). Therefore, for substantially the same reasons given by the district

court, we DENY Petitioner’s request for a certificate of appealability and DISMISS the

appeal.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




                                             -3-
