                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 19, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 WILLIAM GEORGE DUFRIES,

               Petitioner - Appellant,
                                                        No. 11-6162
                                                (D.C. No. 5:09-CV-00177-HE)
 v.
                                                        (W.D. Okla.)
 JANE STANDIFIRD, Warden,

               Respondent - Appellee.



                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


Before KELLY, HARTZ and HOLMES, Circuit Judges.


      William George Dufries, a prisoner in the custody of the State of

Oklahoma, seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2254 motion, which challenged the validity of

his state court conviction and sentence. Because we agree with the district court

that Mr. Dufries has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and



      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
dismiss this matter.

      Mr. Dufries was tried by a jury and convicted, in state court, of trafficking

in a controlled dangerous substance and he was sentenced to life in prison without

the possibility of parole and a fine of $50,000. After unsuccessfully challenging

his conviction and sentence in state court—through direct and collateral

review—Mr. Dufries filed a petition for a writ of habeas corpus in the Western

District of Oklahoma. The matter was referred to a magistrate judge who, after

thorough review of the parties’ filings and the record, recommended that Mr.

Dufries’s petition be denied.

      Mr. Dufries filed an objection to the magistrate judge’s recommendation,

challenging all of the magistrate judge’s conclusions except her determination

regarding Mr. Dufries’s Fourth Amendment claim alleging an illegal search. The

district court noted that Mr. Dufries had waived his rights to appellate review of

all issues related to his Fourth Amendment claim, adopted the magistrate judge’s

recommendation in full, and denied Mr. Dufries’s petition for writ of habeas

corpus. The district judge also denied Mr. Dufries’s request for a COA.

      Mr. Dufries now seeks a COA from this court so that he can appeal the

district court’s denial of his 28 U.S.C. § 2254 motion. Specifically, Mr. Dufries

seeks a COA on four grounds: (1) he was denied effective assistance of trial and




                                        -2-
appellate counsel, 1 (2) his state sentence was improperly enhanced using two prior

federal drug convictions, (3) he was entitled to a lesser-related crime instruction,

and (4) the accumulation of constitutional errors rendered his trial fundamentally

unfair. 2

       1
              Mr. Dufries also requests an evidentiary hearing on his ineffective
assistance claims. Under the Supreme Court’s decision in Cullen v. Pinholster,
131 S. Ct. 1388, 1389 (2011), however, “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the
merits.” The magistrate judge did not have the benefit of Pinholster when she
issued her recommendation in 2010—denying Mr. Dufries’s ineffective assistance
claims on the merits and denying his request for an evidentiary hearing—and the
district court did not address Pinholster in its decision adopting the magistrate
judge’s recommendation. However, we are hard-pressed to discern a foundation
for Mr. Dufries’s request. As he admits, “the [state court] adjudicated the claim
on the merits,” Aplt. Br. at 21, and therefore Pinholster applies. Relying on a
federal district court decision, Hale v. Davis, No. 07-12397, 2011 WL 3163375, at
*8 (E.D. Mich. July 27, 2011), Mr. Dufries nevertheless contends that Pinholster
does not “say that a federal court cannot ever consider evidence adduced at an
evidentiary hearing.” Aplt. Br. at 22. More specifically, he argues that we may
grant an evidentiary hearing “once the 2254(d)(1) hurdle is overcome . . . and
consider evidence adduced therefrom in making the ultimate determination of
whether the Strickland violation happened in fact.” Id. Given the plain terms of
Pinholster, at first blush, this argument strikes us as dubious. However, we need
not definitively opine on it here. As discussed infra, we agree with the district
court that Mr. Dufries has not made a substantial showing of the denial of a
constitutional right regarding the district court’s denial of his ineffective
assistance claims. Therefore, by the terms of Mr. Dufries’s own argument, the
predicate for an evidentiary hearing has not been established—viz., the
§ 2254(d)(1) “hurdle” has not been “overcome.”
       2
             Mr. Dufries asserted seven grounds for habeas relief in his petition
before the district court, but combined two of them before us (relating to
ineffective assistance of trial and appellate counsel) and does not raise two others:
(1) “under the Fourth Amendment, the evidence obtained from the search of his
RV should have been suppressed,” and (2) “his sentence of life without the
possibility of parole for trafficking in drugs is excessive and amounts to cruel and
                                                                        (continued...)

                                         -3-
      “Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We will

not issue a COA unless “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Harris v.

Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting 28 U.S.C. § 2253(c)(2)).

“To make such a showing, an applicant must demonstrate ‘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.’” Harris, 642 F.3d at 906 (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      We have thoroughly reviewed the entire record, the magistrate judge’s

recommendation, the district court’s order, and Mr. Dufries’s brief in support of

his motion for a COA. Based on this review, conducted pursuant to the

framework set out by the Supreme Court in Miller-El, we conclude that Mr.

Dufries is not entitled to a COA on any of his claims. Reasonable jurists could

not debate whether Mr. Dufries’s § 2254 motion should have been resolved in a

different manner. The issues Mr. Dufries seeks to raise on appeal are not


      2
       (...continued)
unusual punishment in violation of the Oklahoma Constitution and the Eighth and
Fourteenth Amendments to the United States Constitution.” Dufries v. Province,
2011 WL 1877986, at *1 (W.D. Okla. May 17, 2011).

                                          -4-
adequate to deserve encouragement to proceed further. Accordingly, we deny

Mr. Dufries’s request for a COA and dismiss this matter.



                                             Entered for the Court


                                             JEROME A. HOLMES
                                             Circuit Judge




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