                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 22, 2018
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 WILLIAM DAVENPORT,

              Petitioner - Appellant,

 v.                                                     No. 17-1316
                                               (D.C. No. 1:16-CV-01270-PAB)
 JOHN CHAPDELAINE; THE                                    (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


      Petitioner William Davenport seeks a certificate of appealability to appeal

the district court’s dismissal of his § 2254 habeas corpus petition.

      Petitioner was charged with one count of first-degree murder and five

counts of attempted first-degree murder. His first trial ended in a hung jury, but

he was convicted of all charges in his second trial, at which the prosecution

presented additional corroborating evidence that had not been introduced in his



      *
        This order is not binding precedent except under the doctrines of law of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.
first trial. His direct appeal and state post-conviction challenges were

unsuccessful.

      In this federal habeas petition, Petitioner raised five claims for relief,

relating to (1) the admission of DNA evidence from a glove found at the scene of

the crime; (2) the admission of a bartender’s testimony that two African-

American males agreed that they were “going to do this” as they left his bar at

about 2 a.m., shortly before the crime occurred at a different bar located less than

a block away 1 (State Tr. CD at 3282); (3) the trial court’s refusal to give two

requested jury instructions; (4) the allegedly suggestive identification of

Petitioner by a prosecution witness for the first time at trial; and (5) alleged

ineffective assistance of counsel based on defense counsel’s failure to call an

expert witness to undermine the reliability of eyewitness identification at the

second trial.

      The district court held that Petitioner’s challenges to the DNA evidence and

the bartender’s testimony were procedurally defaulted because his state-court

arguments on these issues had been based entirely on state law, not federal law,



      1
        Although the bartender did not testify that he recognized Petitioner from
the bar, a detective testified that he had identified Petitioner and his brother on
the bar’s surveillance video from that night. The jury also viewed this
surveillance video, which is part of the record on appeal. The video shows that
one of the African-American men was wearing gloves inside the bar, consistent
with the bartender’s testimony that one of the men—the one who asked if they
were “going to do this”—was wearing gloves.

                                         -2-
and his brief citation to the Fifth and Fourteenth Amendments at the conclusion of

his state-law arguments was insufficient to put the state court on notice that he

was raising a federal constitutional claim. See, e.g., Zuniga v. Falk, 618 F. App’x

407, 411 (10th Cir. 2015). As for Petitioner’s other claims, the district court

considered each of them in detail and ultimately concluded that Petitioner was not

entitled to relief under § 2254. See Frost v. Pryor, 749 F.3d 1212, 1223 (10th

Cir. 2014) (“We may issue the writ only when the petitioner shows there is no

possibility fairminded jurists could disagree that the state court’s decision

conflicts with the Supreme Court’s precedents. . . . If this standard is difficult to

meet—and it is—that is because it was meant to be.” (internal quotation marks

and brackets omitted)).

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

including Petitioner’s state-court filings and the transcripts of both jury trials, we

are persuaded that reasonable jurists would not debate the correctness of the

district court’s rulings. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). For

substantially the same reasons given by the district court, we DENY Petitioner’s

request for a certificate of appealability and DISMISS the appeal. Petitioner’s

motion to proceed in forma pauperis on appeal is GRANTED.


                                                Entered for the Court

                                                Monroe G. McKay
                                                Circuit Judge

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