                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         August 25, 2009
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT



 DAVID J. NEWTON,

      Petitioner - Appellant,
                                                              No. 09-5070
 v.                                               (D.C. No. 4:06-CV-00093-JHP-TLW)
                                                              (N.D. Okla.)
 WALTER DINWIDDIE, Warden,

      Respondent - Appellee.




              ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


        Petitioner-Appellant David J. Newton, a state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) under 28 U.S.C. § 2253(c)(1)(A) to challenge the

federal district court’s denial of his habeas corpus petition filed pursuant to 28 U.S.C.

§ 2254. In his habeas petition, Mr. Newton raised claims of ineffective assistance of trial

and appellate counsel. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a).

        *
              This Order is not binding precedent, except under the doctrines of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. After examining the appellate record, Petitioner’s application for a
certificate of appealability, and other filings, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a). The case is therefore
ordered submitted without oral argument.
Affording a solicitous construction to Mr. Newton’s pro se filings, see Van Deelen v.

Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we hold that no reasonable jurist

could conclude that the district court’s denial was incorrect. See Slack v. McDaniel, 529

U.S. 473, 483–84 (2000). Accordingly, we DENY Mr. Newton’s application for a COA

and DISMISS his appeal.

                                     BACKGROUND

       Mr. Newton was convicted of first-degree rape in the Tulsa County District Court

of the State of Oklahoma. He was sentenced to 400 years’ imprisonment. The Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed Mr. Newton’s conviction. Mr. Newton

then filed a pro se application for post-conviction relief in the state district court. The

state district court denied post-conviction relief. The OCCA affirmed the denial of post-

conviction relief. Mr. Newton then sought § 2254 habeas relief in the District Court for

the Northern District of Oklahoma based on ineffective assistance of trial and appellate

counsel. The district court denied Mr. Newton relief. Mr. Newton filed a motion for a

COA, which the district court also denied. Mr. Newton now renews his request for a

COA.

                                STANDARD OF REVIEW

       A petitioner may appeal the denial of federal habeas relief under § 2254 only if a

COA is issued. 28 U.S.C. § 2253(c)(1)(A). “This is a jurisdictional prerequisite . . . .”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Fed. R. App. P. 22(b)(1). A COA

may not issue under § 2253(c)(1) unless “the applicant has made a substantial showing of

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the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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, 529 U.S. at 484 (internal quotation marks omitted); see Coppage v. McKune, 534

F.3d 1279, 1281 (10th Cir. 2008). Our inquiry requires a “preliminary, though not

definitive, consideration of the [legal] framework.” Miller-El, 537 U.S. at 338. A

prisoner seeking a COA need not demonstrate his or her appeal will succeed to be entitled

to a COA; however, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (internal quotation marks omitted).

                                       DISCUSSION

       Mr. Newton seeks a COA to challenge the federal district court’s denial of his

habeas corpus petition. He raises the same two claims he made in his habeas petition

before the federal district court. First, he claimed that his “[a]ppellate counsel failed to

use direct controlling cases[,] . . . to competently raise [his] Fourth Amendment claims[,]

and to file Trial Counsel’s ineffective assistance claim.” R., Vol. 1, Doc. 67, at 5 (Dist.

Ct. Op. and Order, dated April 17, 2009). Second, he claimed that his “[t]rial counsel

failed to competently litigate [his] Fourth Amendment issues before the Trial Court and

failed to use direct controlling cases to support the issue.” Id.

       Because the OCCA addressed Mr. Newton’s ineffective assistance of appellate

counsel claim on the merits in affirming the denial of post-conviction relief, the district

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court applied the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under

AEDPA, if a claim already has been adjudicated on the merits in state court proceedings,

a petitioner is entitled to federal habeas relief only if he can establish that the state court’s

adjudication of the claim:

               (1) resulted in a decision that was contrary to, or involved an
               unreasonable application of, clearly established Federal law, as
               determined by the Supreme Court of the United States; or

               (2) 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). “Subsection (d)(1) governs claims of legal error while

subsection (d)(2) governs claims of factual error.” House v. Hatch, 527 F.3d 1010, 1015

(10th Cir. 2008), cert. denied, 129 S. Ct. 1345 (2009).

       The Supreme Court’s decision Strickland v. Washington, 466 U.S. 668 (1984),

governs claims of ineffective assistance of counsel. Under Strickland, a defendant must

show that his counsel’s performance was constitutionally deficient and that the deficient

performance was prejudicial. Strickland, 466 U.S. at 687; see Sandoval v. Ulibarri, 548

F.3d 902, 909 (10th Cir. 2008) (“Under Strickland, [a defendant] must show that

counsel’s performance fell below an objective standard of reasonableness as measured

against prevailing professional norms, and . . . that there is a reasonable probability that

the outcome would have been different but for counsel’s inadequate performance.”),

petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 27, 2009) (No. 08-10772). In the case

of a claim that appellate counsel mishandled an issue on direct appeal, there is a distinct

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kind of analysis that ordinarily must be undertaken:

              When a habeas petitioner alleges that his appellate counsel rendered
              ineffective assistance by failing to raise an issue on direct appeal, we
              first examine the merits of the omitted issue. If the omitted issue is
              meritless, then counsel’s failure to raise it does not amount to
              constitutionally ineffective assistance. If the issue has merit, we then
              must determine whether counsel’s failure to raise the claim on direct
              appeal was deficient and prejudicial.

Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999) (citation omitted).

       The district court found that Mr. Newton failed to establish that the OCCA’s

adjudication of the ineffective assistance of appellate counsel claim was an unreasonable

application of Strickland. Consequently, it found that Mr. Newton was not entitled to

habeas relief under the deferential AEDPA standard of review.

       Regarding Mr. Newton’s second claim, the OCCA, on post-conviction appeal,

determined that Mr. Newton’s claim for ineffective assistance of trial counsel was

procedurally barred because it could have been but was not raised on direct appeal. In

making its determination whether to deny Mr. Newton’s second claim, the district court

did not address whether the ineffective assistance of trial counsel claim was procedurally

barred. Rather, it found that “even if Petitioner’s claim of ineffective assistance of trial

counsel [was] not procedurally barred, Petitioner is not entitled to habeas corpus relief

because under Strickland, the claim lacks merit.” R., Vol. 1, Doc. 67, at 14.

       After examining the record on appeal, Mr. Newton’s COA application, and other

filings, we have determined that the district court’s reasoning and conclusions are sound.

More specifically, no reasonable jurist could debate whether the district court properly

                                              -5-
resolved Mr. Newton’s petition for habeas relief. See Slack, 529 U.S. at 484. In sum, Mr.

Newton has not “made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2).

                                    CONCLUSION

      For the reasons set forth above, we DENY Mr. Newton’s application for a COA

and DISMISS his appeal.



                                                 Entered for the Court



                                                 Jerome A. Holmes
                                                 Circuit Judge




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