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

                                     TENTH CIRCUIT                            May 28, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 DANIEL COLE JAMES,

           Petitioner - Appellant,

 v.                                                           No. 14-5001
                                                 (D.C. No. 4:11-CV-00010-TCK-FHM)
 TERRY MARTIN, Warden,                                        (N.D. Okla.)

           Respondent - Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Daniel James, a state prisoner proceeding pro se,1 seeks a certificate of

appealability (“COA”) to appeal the district court’s order denying his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1) (requiring a COA

to appeal the denial of a habeas application). Exercising jurisdiction under 28 U.S.C.

§ 1291, we deny a COA and dismiss this matter.

       *This order is not binding precedent, except under the doctrines of law of the case,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.]
       1
        Because Mr. James is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). “[T]his rule of liberal
construction stops, however, at the point at which we begin to serve as his advocate.”
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
                                   I. BACKGROUND

       A Tulsa County District Court convicted Mr. James of Rape by Instrumentation

and Lewd Molestation for sexually abusing a four-year-old girl. On direct appeal, the

Oklahoma Court of Criminal Appeals (“OCCA”) reversed his conviction because the trial

court failed to give proper jury instructions regarding testimony concerning Mr. James’s

prior child molestation acts. See James v. Oklahoma (James I), 152 P.3d 255, 257 (Okla.

Crim. App. 2007). Shortly thereafter, Oklahoma enacted Okla. Stat. tit. 12, §§ 2413 and

2414, making evidence of sexual offenses admissible for any relevant purpose.

Oklahoma tried and convicted Mr. James again, and the OCCA affirmed. See James v.

Oklahoma (James II), 204 P.3d 793 (Okla. Crim. App. 2009). Mr. James then applied for

post-conviction relief in Tulsa County District Court, which denied relief. He appealed

to the OCCA, which affirmed.

       Mr. James petitioned the U.S. District Court for the Northern District of Oklahoma

for a writ of habeas corpus. It denied his petition and a COA. As to four of Mr. James’s

claims—insufficiency of the evidence, Confrontation Clause violation, the trial court’s

improper communication with the jury, and ineffective assistance of trial counsel—the

district court concluded they were procedurally barred because Mr. James failed to raise

them before the OCCA on direct appeal and post-conviction relief. As to Mr. James’s

remaining two claims—the admission “other crimes” evidence and ineffective assistance

of appellate counsel—the district court denied relief.


                                            -2-
                                     II. DISCUSSION

       Mr. James seeks a COA on four constitutional claims: (1) a due process violation

for admission of testimony concerning prior sex abuse; (2) a Sixth Amendment

ineffective assistance of counsel violation for his appellate counsel’s failure to argue the

prosecution knowingly infringed his Confrontation Clause rights; (3) a due process

violation for the prosecution’s failure to prove guilt beyond a reasonable doubt; and (4) a

Confrontation Clause violation for admission of hearsay.2

       The OCCA decided the first two issues on the merits; they therefore are reviewed

for federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Mr. James did not ask the OCCA to review the last two claims and does not

challenge the district court’s determination that they are procedurally barred.

       A COA is a jurisdictional prerequisite to appeal from a district court’s denial of a

§ 2254 habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When a

state court has decided the petitioner’s claim on the merits, we “look to the District

Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that

resolution was debatable among jurists of reason.” Miller–El, 537 U.S. at 366. AEDPA

provides that federal courts cannot grant habeas relief unless the state court’s decision

       2
          Mr. James attempts to seek a COA on a fifth issue by saying the district court
should not have denied his prosecutorial misconduct claim. But his § 2254 petition did
not include such a claim separate from his claim that appellate counsel should have raised
prosecutorial misconduct on direct appeal. The district court rejected that claim, and we
address it here, but Mr. James cannot obtain a COA for a claim not presented to the
district court.

                                             -3-
“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).

       To obtain a COA when the district court has denied habeas relief on procedural

grounds, the petitioner must show “that jurists of reason would find it debatable [(1)]

whether the petition states a valid claim of the denial of a constitutional right and . . .

[(2)] whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

                       A. Claims the OCCA Adjudicated On the Merits

1. Admission of “other crimes” evidence

       Mr. James argues the state trial court violated his due process rights by admitting

evidence that he had sexually abused another child.

       a. Additional background

       At the first trial, the judge allowed a witness to testify that Mr. James had sexually

abused her in 1992 when she was three years old. On appeal, the OCCA reversed Mr.

James’s conviction and remanded for a new trial because the abuse allegations

constituted improper propensity evidence. See James I, 152 P.3d at 257.

       A few months later, the Oklahoma legislature enacted Okla. Stat. tit. 12, §§ 2413

and 2414, patterned after Federal Rules of Evidence 413 and 414. Section 2414 states:

“In a criminal case in which the defendant is accused of an offense of child molestation,
                                              -4-
evidence of the defendant’s commission of another offense or offenses of child

molestation is admissible, and may be considered for its bearing on any matter to which it

is relevant.” Okla. Stat. tit. 12, § 2141. Once again, Oklahoma tried Mr. James, the trial

judge admitted the testimony about the 1992 abuse, and a jury convicted Mr. James.

       He appealed to the OCCA, arguing in part that the trial court’s admission of this

evidence violated his constitutional right to due process and a fundamentally fair trial.

The OCCA concluded, in light of § 2414, the trial court properly admitted the evidence

because its probative value outweighed any unfairly prejudicial effect. See James II, 204

P.3d at 796. It determined the 1992 allegations “showed a visible connection with the

instant charges, and demonstrated a common scheme to take sexual advantage of very

young girls that were placed in his trust and care.” Id. at 798. In addition, “the trial court

cautioned the jury on the limited use of such evidence” more than once. Id.3 Mr. James

did not raise this issue in his post-conviction petition before the OCCA.

       On federal habeas review, the district court determined Mr. James was not denied

due process or a fair trial because in his second trial, unlike in his first trial, the court

instructed the jury not to use the evidence as proof of guilt.



       3
        The OCCA did not expressly state there was no violation of Mr. James’s due
process rights. However, “[w]hen a state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits . . . .” See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013)
reh’g denied, 133 S. Ct. 1858 (U.S. 2013). Mr. James has made no argument to rebut this
presumption.

                                               -5-
       b. Analysis

       In his request for COA, Mr. James argues the evidence was inadmissible because,

even under § 2414, “propensity evidence must be established by clear and convincing

evidence.” Aplt. Br. at 10 (quoting Horn v. State, 204 P.3d 777, 786 (Okla. Crim. App.

2009)). He contends the 1992 allegations were not established by clear and convincing

evidence because the OCCA in his first direct appeal determined that the only witness

testifying about the allegations was “not credible.” Id. at 12; see also James I, 152 P.3d

at 257. He then argues the trial court, the OCCA (on second direct appeal and on post-

conviction review), and the federal district court all ignored the OCCA’s credibility

finding, thus violating his right to due process and a fundamentally fair trial. This

argument fails because the OCCA made no such credibility finding.

       On the first direct appeal, the OCCA stated:

                     The other crimes evidence in this case was extensive
              and prejudicial. It was thirteen years old, the allegations
              never resulted in filed charges, and there were credibility
              issues. To some extent the evidence was improperly used as
              substantive proof of James’s guilt of the charged crimes. The
              jury was not properly instructed on its limited use.

James I, 152 P.3d at 257. The OCCA reversed Mr. James’s first conviction based on the

trial court’s failure to instruct the jury on the proper use of the evidence. Id. The

OCCA’s reference to “credibility issues” was not a credibility finding.

       More fundamentally, Mr. James has not “made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A). He has not shown that the

                                             -6-
OCCA’s decision on the admission of the 1992 sexual abuse evidence “was contrary to,

or involved an unreasonable application of clearly established” Supreme Court precedent.

28 U.S.C. § 2254(d)(1).

       We conclude that jurists of reason could not disagree with the district court’s

denial of habeas relief on this issue.

2. Ineffective assistance of appellate counsel

       Mr. James argues his appellate counsel was ineffective. He contends the

prosecutor committed misconduct at trial by knowingly violating his Confrontation

Clause rights and his appellate counsel should have raised this issue on appeal.

       An ineffective assistance of counsel claim requires a showing that (1) counsel’s

representation “fell below an objective standard of reasonableness,” Strickland v.

Washington, 466 U.S. 668, 687-88 (1984), and (2) “the deficient performance prejudiced

the defense,” id. at 694.

       a. Additional background

       On direct appeal, the OCCA did not decide Mr. James’s claim of prosecutorial

misconduct because it thought the issue was not sufficiently argued. See James II, 204

P.3d at 798 n.10. In post-conviction proceedings, Mr. James argued his appellate counsel

was ineffective for failing to raise prosecutorial misconduct on direct appeal. The OCCA

determined Mr. James failed to show prejudice—that any deficient performance changed

the outcome of his appeal. See Response in Opposition to Petition for Writ of Habeas

Corpus, Exh. 6 at 2-3, James v. Martin, No. 4:11-CV-00010-TCK-FHM (N.D. Okla.
                                            -7-
Mar. 21, 2011), ECF No. 8 (OCCA Order Affirming Denial of Application for Post-

conviction Relief).

       Reviewing Mr. James’s habeas petition, the federal district court decided appellate

counsel was not ineffective because Mr. James’s Confrontation Clause rights were not

violated at trial, where the prosecutor asked Mr. James’s wife, Kellie James, about a

statement from his former wife, Glenda Kyser: “Isn’t it true ma’am that Glenda Kyser

told you, warned you when you got together with Mr. James that you better watch out for

any kids that you have because of sexual abuse?” ROA, Vol. I at 26 (quoting transcript

from second trial). Ms. James denied having that conversation with Ms. Kyser. Id. Mr.

James argued in his petition that because “Ms. Kyser was not at trial for [him] to confront

or cross-examine in open court,” the prosecutor’s question violated his Confrontation

Clause rights. Id.

       The district court determined the prosecutor’s question was not testimonial and

therefore did not implicate the Confrontation Clause. See Crawford v. Washington, 541

U.S. 36, 51 (2004) (holding the Confrontation Clause applies only to testimonial

statements). The district court concluded appellate counsel could not have been

ineffective because there was no statement that was testimonial, and therefore there was

no Confrontation Clause violation and no prosecutorial misconduct.4


       4
        The district court also determined that Mr. James’s counsel sufficiently argued
prosecutorial misconduct on direct appeal, despite the OCCA’s conclusion to the
contrary.

                                            -8-
       b. Analysis

       We agree with the district court’s conclusion. No out-of-court statement was

admitted. The prosecutor asked about what an absent declarant may have said, and the

witness denied even having the conversation. There was no statement admitted from a

missing witness, no prosecutorial misconduct, and nothing for appellate counsel to

appeal. Reasonable jurists would not debate the district court’s denial of the ineffective

assistance claim.

                          B. Claims the OCCA Did Not Adjudicate

       Mr. James seeks a COA for Confrontation Clause and insufficiency of the

evidence claims. The district court determined these claims are procedurally barred

because he failed to raise them before the OCCA either on direct appeal or in post-

conviction proceedings. In his request for COA, Mr. James does not challenge the

district court’s procedural bar ruling. Instead, he argues the merits. We therefore deny

COA on these claims.

                                   III. CONCLUSION

       For the foregoing reasons, we deny Mr. James’s petition for a COA and dismiss

this matter.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge

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