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

                            FOR THE TENTH CIRCUIT                          February 13, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 RODNEY DOUGLAS EAVES,

       Petitioner - Appellant,

 v.                                                          No. 19-1452
                                                   (D.C. No. 1:18-CV-02619-CMA)
 COLORADO DEPARTMENT OF                                       (D. Colo.)
 CORRECTIONS; THE ATTORNEY
 GENERAL STATE OF COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.
                  _________________________________

      Rodney Douglas Eaves, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his 28

U.S.C. § 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal “the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by a State court”). He also




      *
         This order and judgment is not binding precedent, except under the doctrines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.
seeks leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under

28 U.S.C. § 1291, we deny both requests and dismiss this matter.1

                                 I. BACKGROUND

      Mr. Eaves is serving a 30-year sentence based on his convictions for

aggravated robbery and other crimes. After his unsuccessful appeal to the Colorado

Court of Appeals (“CCA”), he applied for federal habeas relief under 28 U.S.C.

§ 2254, asserting 13 claims. The district court directed the Respondents to file a

pre-answer response addressing timeliness, exhaustion, and procedural default; and it

ordered that Mr. Eaves could file a reply. After receiving these filings, the court

dismissed as procedurally defaulted (1) the Fourteenth Amendment components of

claims one and two and (2) claims six through thirteen in their entirety. Mr. Eaves

moved to amend his reply to show that prejudice and miscarriage of justice should

preclude procedural default of these claims. The court construed the motion as a

request for review of its dismissal order, and denied it because Mr. Eaves was already

afforded an opportunity to make this showing in his reply. In a separate order, the

court denied relief on the remaining five claims and denied a COA.




      1
         Because Mr. Eaves is pro se, we construe his filings liberally, but we do not
act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). He is
subject to the same procedural rules governing other litigants. See United States v.
Green, 886 F.3d 1300, 1307-08 (10th Cir. 2018).


                                           2
                                    II. DISCUSSION

                          A. COA Requirement and AEDPA

       To review a § 2254 application, we must grant a COA. 28 U.S.C.

§ 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To receive a COA,

an applicant must make a “substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), and “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right,” Slack v.

McDaniel, 529 U.S. 473, 484. When the district court denied a habeas claim on

procedural grounds, the applicant must also show “that jurists of reason would find it

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

U.S. at 484; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007). Thus,

if an applicant cannot make a showing on the procedural issue, we need not address

the constitutional question. See Slack, 529 U.S. at 485.

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

when a state court has adjudicated the merits of a claim, a federal district court

cannot grant habeas relief on that claim unless the state court’s decision “was

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

law, as determined by the Supreme Court of the United States,” 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). When the

district court has denied habeas relief because the petitioner failed to overcome

AEDPA, our COA decision requires us to determine whether reasonable jurists could

                                             3
debate the court’s application of AEDPA to the state court’s decisions. Miller-El,

537 U.S. at 336.

                                      B. Analysis

      In his brief to this court, Mr. Eaves challenges the district court’s denial of his

motion to amend his reply to the Respondents’ pre-answer response. But as the

district court noted, Mr. Eaves could have made his arguments in his reply brief. No

reasonable jurist would debate that the district court acted within its discretion. See

Pittman v. Fox, 766 F. App’x 705, 721 (10th Cir. 2019) (unpublished) (reviewing for

abuse of discretion the denial of a habeas petitioner’s motion for reconsideration of

district court order).2 We deny a COA on this issue.

      Mr. Eaves also challenges the court’s rulings on each of the claims that were

not procedurally defaulted. Before turning to those claims, we note that Mr. Eaves

repeatedly argues that the CCA did not address his claims in whole or in part. Aplt.

Br. at 6, 8, 10, 11, 12. If that were so, he would not need to meet the demanding



      2
         See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
        Mr. Eaves’s arguments in his brief to this court are unavailing. He argues that
when the CCA struck his original 88-page brief and ordered him to file a 45-page
brief, the CCA did not tell him he needed to “concisely present his claims,” including
those the district court deemed procedurally barred. Aplt. Br. at 3. But federal
habeas applicants must exhaust their arguments in the state courts, 28 U.S.C.
§ 2254(b)(1), and Mr. Eaves does not contend here that he did so in the brief
reviewed by the CCA. Mr. Eaves asserts that the district court “misconstrued” his
motion and cites Fed. R. Civ. P. 15(a)(2) and Foman v. Davis, 371 U.S. 178 (1962).
Aplt. Br. at 4. But Rule 15(a)(2) and Foman concern amendment of pleadings, not
whether a litigant may file an amended brief to contest an order.


                                           4
AEDPA requirements on federal habeas review. See Stouffer v. Duckworth, 825 F.3d

1167, 1179 (10th Cir. 2016) (“[I]f the state court did not decide the claim on the

merits, the stringent principles of deference under . . . § 2254 are inapplicable.”

(quotations omitted)). But Mr. Eaves is mistaken. The district court showed that the

CCA addressed each claim, in most instances quoting from the CCA’s decision.

      But even if the CCA did not fully address one or more of Mr. Eaves’s claims,

they are still subject to AEDPA review. Where, as here, “a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.” Johnson v. Williams,

568 U.S. 289, 298 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 99 (2011)).

Mr. Eaves has not overcome this presumption because he has not identified any

“state-law procedural principles” or other “indication” showing the state court did not

resolve his claim. Id. (quoting Harrington, 562 U.S. at 99).

      We therefore review the claims under §§ 2254(d)(1) & (2) and conclude Mr.

Eaves fails to show that reasonable jurists could debate the district court’s denial of

relief. We therefore deny a COA on all of his claims.

   Fourth Amendment Search and Seizure Claim

      The district court denied Mr. Eaves’s Fourth Amendment claim alleging illegal

searches and seizures because, under Stone v. Powell, 428 U.S. 465, 494 (1976),

federal habeas relief may not be granted when the state has provided a full and fair

opportunity to litigate the claim, and Mr. Eaves has failed to show he was denied that

                                            5
opportunity. The record shows he filed motions to suppress, the state trial court held

evidentiary hearings, and he raised his Fourth Amendment claim on appeal. A COA

is not warranted because reasonable jurists would not debate the district court’s

determination under Stone.

   Fifth Amendment Claim – No Probable Cause Affidavit with Complaint

      The district court rejected Mr. Eaves’s argument that his Fifth Amendment

rights were violated because the state trial court accepted the criminal complaint and

information without a supporting affidavit. The CCA, however, found that a

supporting affidavit was filed in the trial court that supported the complaint and

information, and the district court, applying AEDPA under § 2254(d)(2), held that

Mr. Eaves failed to show this finding was based on an unreasonable determination of

facts. See also United States v. Mechanik, 475 U.S. 66, 73 (holding conviction by the

petit jury shows there was probable cause and renders harmless lack of probable

cause for the indictment); United States v. Hillman, 642 F.3d 929, 936 (10th Cir.

2011). Mr. Eaves has not shown how reasonable jurists would debate this holding.

We deny a COA.

   Sixth Amendment Claim – Speedy Trial Violation

      The district court denied habeas relief on Mr. Eaves’s speedy trial claim,

concluding that he did not show that the CCA’s affirmance of the trial court’s denial

of the claim was contrary to or an unreasonable application of the Supreme Court’s

decision in Barker v. Wingo, 407 U.S. 514 (1972). The district court determined that

Barker’s four-factor test supported the CCA’s decision. For substantially the same

                                           6
reasons as stated by the district court, we agree. Reasonable jurists would not debate

otherwise. We deny a COA.

   Fourteenth Amendment Claim – Right to Discovery

      The CCA rejected Mr. Eaves’s claim that he was entitled to discovery of a

detective’s handwritten and voice-recorded notes when the detective testified they

were identical to the typewritten notes that were provided. The district court said this

ruling was consistent with California v. Trombetta, 467 U.S. 479 (1984), and Arizona

v. Youngblood, 488 U.S. 51 (1988), and therefore Mr. Eaves could not overcome

AEDPA review.

      The CCA also rejected Mr. Eaves’s contention that he was not afforded

adequate opportunity to review AT&T records of GPS data. Although the

prosecution did not provide these records in print form, it gave electronic copies to

Mr. Eaves’s investigator and advisory counsel at least three times. The district court

said that Mr. Eaves had failed to show the CCA’s determination of no discovery

violation was contrary to or an unreasonable application of clearly established

Supreme Court law or was based on an unreasonable determination of facts.

      Because the district court’s determinations would not be debatable among

reasonable jurists, we deny a COA on this issue.

   Sixth Amendment Claim – Exclusion of Evidence on an Alternate Suspect
   Defense

      The CCA affirmed the trial court’s decision to quash Mr. Eaves’s subpoena for

records related to an alleged alternative suspect because it was a “fishing expedition”


                                           7
that contravened state evidence rules and because Mr. Eaves failed to state why he

needed the information or how the evidence would connect the suspect to the crime.

It also affirmed the trial court’s decision to quash Mr. Eaves’s subpoenas to eight

police officers who did not investigate his robbery case but investigated a case

concerning a shooter, where both crimes involved a Nissan. The CCA relied on

multiple grounds, including Mr. Eaves’s failure to show a non-speculative connection

to the alternate suspect and the trial court’s determination that the evidence would

unduly confuse the jury under Colorado Rule of Evidence 403.

      The district court said the state courts concluded that Mr. Eaves’s subpoenas

requested materials and testimony that were inadmissible under the state rules of

evidence. It said Mr. Eaves had failed to show how the exclusion of the evidence

was contrary to or an unreasonable application of clearly established federal law or

was based on an unreasonable determination of facts. 28 U.S.C. § 2254(d).

      In his brief to this court, Mr. Eaves has not made a “substantial showing of”

how these state court rulings were a “denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), nor has he shown how reasonable jurists would debate the district

court’s rejection of this claim. We deny a COA.




                                           8
                         III. CONCLUSION

We deny a COA, deny the request to proceed ifp, and dismiss this matter.




                                   Entered for the Court


                                   Scott M. Matheson, Jr.
                                   Circuit Judge




                                   9
