                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          August 30, 2018
                            FOR THE TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                        _________________________________                   Clerk of Court
CODY WAYNE MAYFIELD,

      Petitioner - Appellant,

v.                                                          No. 17-6231
                                                    (D.C. No. 5:16-CV-00557-HE)
JIMMY MARTIN,                                               (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

      Applicant Cody W. Mayfield seeks a certificate of appealability (COA) to appeal

the denial by the United States District Court for the Western District of Oklahoma of his

application for relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring

COA to appeal final order in a habeas proceeding in which the detention complained of

arises out of process issued by a state court). We deny a COA and dismiss the appeal.

      An Oklahoma state-court jury convicted Applicant of two counts of possessing a

controlled substance after having two or more felony convictions. On appeal the

Oklahoma Court of Criminal Appeals (OCCA) reversed one possession count, but

otherwise affirmed. Applicant then filed his § 2254 application.

      A COA will issue “only if the applicant has made a substantial showing of 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 v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that the state-court decision was

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

as determined by the Supreme Court of the United States,” or “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).

       As we have explained, “Under the ‘contrary to’ clause, we grant relief only if the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Court has on a set

of materially indistinguishable facts.” Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.

2004) (brackets and some internal quotation marks omitted). Relief is provided under the

“unreasonable application” clause “only if the state court identifies the correct governing

legal principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation marks


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omitted). Thus, a federal court may not issue a habeas writ simply because it concludes

in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. See id. Rather, that application must

have been unreasonable. See id. Therefore, for those of Applicant’s claims that the

OCCA adjudicated on the merits, “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of [his] request for [a] COA.”

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

       In this court Applicant asserts four grounds for relief. He first argues that the

prosecution submitted “false evidence” at his trial—a picture of a cellophane fragment

found in his car that was allegedly tied to a bag containing a controlled substance. The

OCCA deemed the photograph relevant and admissible, and the district court concluded

that Applicant failed to show that the OCCA unreasonably applied federal law. No

reasonable jurist could debate the district court’s conclusion.

       Applicant next argues that at sentencing the trial court admitted a “pen packet”

containing prejudicial materials. On direct appeal the OCCA determined that the error

“did not seriously affect the fairness, integrity, or public reputation of the proceedings,”

given other admissible evidence of Applicant’s criminal past and the prosecution’s failure

to emphasize the problematic material in its closing argument. R., Vol. I at 255. The

district court concluded that Applicant had not shown that the OCCA unreasonably

applied federal law. No reasonable jurist could debate the district court’s conclusion.

       Third, Applicant argues that his sentence was improperly enhanced by

consideration of a prior felony conviction that was too old to be applicable under the state


                                              3
enhancement statute. But Applicant did not raise this issue in his § 2254 application. It

is therefore not properly before this court. See Parker v. Scott, 394 F.3d 1302, 1307

(10th Cir. 2005) (claims not raised in § 2254 application to district court are waived).

       Applicant’s fourth ground for relief is that he received ineffective assistance of

counsel at trial. To establish ineffective assistance, Applicant first has the burden of

overcoming “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689 (1984),

by demonstrating that his counsel’s performance fell below “an objective standard of

reasonableness,” id. at 688. Second, Applicant must demonstrate “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. We can consider the performance

and prejudice prongs in either order; if Applicant fails to meet his burden on one prong,

we need not consider the other. See id. at 697.

       Applicant contends that his trial counsel (1) failed to object to the prosecution’s

mention of a 1993 conviction; (2) failed to object to that conviction’s introduction into

evidence as part of the pen packet; (3) failed to object to the pen packet’s admission; and

(4) told the jury at sentencing that Applicant was a drug addict. The first two claims fail

because they were not presented in his § 2254 application. See Parker, 394 F.3d at 1307.

As for claims 3 and 4, the OCCA denied relief on both, stating that “under the deficient

performance/prejudice test of Strickland . . . , no relief is warranted” because these

“alleged deficiencies create no reasonable probability of a different outcome.” R. at 256–

57. The district court held that the OCCA reasonably applied Strickland. No reasonable


                                              4
jurist could debate the district court’s ruling.

       We DENY a COA and DISMISS the appeal. We GRANT Applicant’s motion to

proceed in forma pauperis.


                                                   Entered for the Court


                                                   Harris L Hartz
                                                   Circuit Judge




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