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

                            FOR THE TENTH CIRCUIT                            May 21, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
YANCEY R. L. DOUGLAS,

      Petitioner - Appellant,

v.                                                        No. 17-6219
                                                   (D.C. No. 5:16-CV-01454-C)
JIM FARRIS, Warden,                                       (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      Yancey R. L. Douglas, a state prisoner, seeks a certificate of appealability

(COA) under 28 U.S.C. § 2253(c)(1) to challenge the denial of his 28 U.S.C. § 2254

habeas petition. We deny his request for a COA.

                                  BACKGROUND

      On February 4, 2012, Sergeant Furrh and Sergeant Cadena of the Oklahoma

City Police Department saw a silver Mercedes speed through an intersection.

Sergeant Cadena turned on the patrol car’s emergency lights and pursued the

Mercedes, which stopped within a block of being signaled to do so. The Mercedes

had dark tinted windows, so the officers asked the occupants to roll them down. After

      *
         This order is not binding precedent, except under the doctrines of law of the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.
they did so, the officers were able to see that Douglas was the driver, and a woman

was the front-seat passenger. Upon request, Douglas gave Sergeant Cadena his

driver’s license and insurance information. But the passenger told Sergeant Furrh that

she had no identification. She gave as her name “Shelly Long” and also gave a

birthdate.

       The officers returned to their patrol car to check the occupants’ identification

information. Douglas’s information came back as valid. Sergeant Furrh then entered

“Shelly Long” into the in-car computer, and after some difficulty, he found an entry

with the birthdate and name given, but for someone of a different race than the

passenger. Sergeant Furrh then decided to question the passenger.

       Sergeant Furrh re-approached the Mercedes, and Sergeant Cadena hung back

to act as backup. Sergeant Furrh asked Long to exit the car. She did so after some

hesitation, and as she got up, Sergeant Furrh saw a firearm on the passenger seat. He

shouted “gun” to alert his partner. R. vol. 4 at 754:1–5. Sergeant Furrh then reached

for the gun. But Douglas put the car into gear and began to drive away. At that point,

Sergeant Furrh was “waist deep with” his “whole entire upper body in the car” as he

grabbed the gun, so he twisted out of the car, but it still “clip[ped]” him. Id. at

755:18–19, 756:15.

       Sergeant Furrh ran back to the patrol car, and jumped into the passenger’s seat.

Meanwhile, Sergeant Cadena had hopped back into the driver’s seat of the patrol car,

and together, they pursued the Mercedes. The pursuit lasted a few minutes. Douglas



                                            2
eventually stopped the vehicle and fled on foot, but an officer who had joined the

pursuit subdued and arrested him.

      The State of Oklahoma charged Douglas with one count of being a felon in

possession of a firearm, see Okla. Stat. tit. 21, § 1283; one count of aggravated

attempting to elude a police officer, see Okla. Stat. Ann. tit. 21, § 540A(B); one

count of obstructing an officer, see Okla. Stat. Ann. tit. 21, § 540; and one count of

assault and battery with a dangerous weapon, see Okla. Stat. Ann. tit. 21, § 645. At a

preliminary hearing, the trial court dismissed the charge of aggravated attempting to

elude a police officer. And on October 22, 2014, a jury found Douglas guilty on the

remaining counts.

      Six months later, Douglas filed a Motion for Production of Brady Material,

and a week later, he filed a Motion for a New Trial. At sentencing, the trial court

denied both motions. The trial court then sentenced Douglas to ten years’

imprisonment on the felon-in-possession charge, six months and a $500 fine on the

obstructing-an-officer charge, and seven years on the assault-and-battery-with-a-

dangerous-weapon charge, all to run consecutively.

      On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA),

Douglas argued, among other things, that Oklahoma had violated the rule of Brady v.

Maryland, 373 U.S. 83, 87 (1963), by withholding from him until after trial a

Computer Assisted Dispatch Report (CAD report) that, he said, conflicted with

Sergeant Cadena’s and Sergeant Furrh’s trial testimonies. And he argued that if the

CAD report had been disclosed to the defense before trial, he could have used it to

                                           3
impeach the officers. Specifically, Douglas alleged that the CAD report showed that

the officers in fact didn’t call in any record checks on him or Long, as they had

testified.

       The OCCA determined that the record conflicted regarding whether the State

had first disclosed the CAD report before trial. But because the officers’ testimonies

were “corroborated by” the CAD report disclosed before sentencing (from the State’s

perspective, for the second time),1 the court concluded that the CAD report wasn’t

material. R. vol. 1 at 79; see also R. vol. 2 at 455 (CAD report showing two inquiries

entered by Sergeant Cadena on the day of the traffic stop, one for Douglas and one

for Long). And so, the court determined, Brady didn’t even require disclosure,

because “nothing in the CAD report would have impeached the officers’ testimony.”

R. vol. 1 at 82. The OCCA thus affirmed Douglas’s convictions.

       Douglas then filed for post-conviction relief in the District Court of Oklahoma

County, arguing, among other things, that his direct-appeal counsel had been

ineffective for failing to raise the issue of his trial counsel’s ineffectiveness on the

Brady CAD report issue. The state district court disagreed, remarking that Douglas’s

direct-appeal counsel’s brief “was well written and raised a number of viable

contentions” and further noting that just because “counsel did not raise [] additional

       1
         In response to Douglas’s Motion for a New Trial which argued that the
district attorney failed to disclose the CAD report before trial warranted in violation
of Brady, the Oklahoma County District Attorney argued that the assistant district
attorney who tried Douglas had received the CAD report by email on September 9,
2013, and had placed the report in Douglas’s case file. And the district attorney
alleged that Douglas’s defense counsel reviewed that case file and all the evidence
within it on October 14, 2014.
                                             4
attacks on trial counsel’s performance . . . does nothing to evince a deficient

performance.” R. vol. 1 at 97. So it denied Douglas’s post-conviction application.

Acting pro se, Douglas appealed this denial to the OCCA. Id. at 90. The OCCA

affirmed, determining that “[c]ontrary to [Douglas’s] claims, appellate counsel

thoroughly litigated these claims in [Douglas’s] direct appeal,” meaning that Douglas

had failed to establish that his appellate counsel had performed deficiently. Id.

      On December 21, 2016, Douglas, again acting pro se, filed a habeas petition in

the United States District Court for the Western District of Oklahoma. Id. at 6. He

alleged that his direct-appeal counsel

      was ineffective for not raising the Issues of the trial Judge and not
      submitting the documentation of the in-cam[e]ra hearing on September
      9th 2013. Appellate counsel was ineffective also for not submitting the
      news channel segment of Oklahoma stop and identify laws, or the traffic
      stop tapes.

Id. at 11. In light of Douglas’s pro se status, the magistrate judge liberally construed

this claim (in part) as arguing that Douglas’s direct-appeal counsel “should have . . .

challenged the State’s failure to produce the Computer Assisted Dispatch Report

(“CAD”) discussed at the September 9, 2013, in-camera hearing and/or submitted the

CAD report to the OCCA.” R. vol. 2 at 426. The magistrate judge rejected this

Strickland claim, concluding that Douglas’s direct-appeal counsel had raised the

Brady CAD report issue. The district court adopted the magistrate judge’s Report &

Recommendation, and denied Douglas’s application for a certificate of appealability.




                                            5
                                     DISCUSSION

      To proceed with his appeal, Douglas must obtain a COA. 28 U.S.C.

§ 2253(c)(1). To obtain a COA, a petitioner must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing,

an applicant must demonstrate ‘that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that issues presented were

adequate to deserve encouragement to proceed further.’” Allen v. Zavaras, 568 F.3d

1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

“Where a district court has rejected the constitutional claims on the merits . . . [t]he

petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.

Here, the issue is whether Douglas received ineffective assistance of direct-appeal

counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984) when his direct-

appeal counsel allegedly inadequately briefed his Brady CAD report claim before the

OCCA.2

      The Antiterrorism and Effective Death Penalty Act (AEDPA) limits our review

of claims decided by the state court on the merits. See 28 U.S.C. § 2254(d)(1), (2).

We evaluate the state-court decision to see if it is “contrary to, or involves an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or resulted in a decision that was based on an

      2
        Douglas “abandon[ed] his claims with respect to the recusal of the state trial
judge and the failure to submit the news channel segment on Oklahoma stop and
identify laws or the traffic stop tape.” Appellant’s Opening Br. at 24 n.6.
                                            6
unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Id.; see Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007). The

OCCA resolved Douglas’s Strickland claim on the merits, determining that “[t]here is

nothing in this case to indicate . . . had appellate counsel argued the issue differently

on appeal it would have changed the result of his appeal. . . . Contrary to Petitioner’s

claims, appellate counsel thoroughly litigated these claims in Petitioner’s direct

appeal.” R. vol. 1 at 90. So we review Douglas’s claim as directed by § 2254(d)(1)

and (2).

       Strickland governs ineffective-assistance-of-counsel claims, including those

complaining of appellate counsel’s performance. Hooks v. Ward, 184 F.3d 1206,

1221 (10th Cir. 1999). When a petitioner alleges that his appellate counsel

ineffectively assisted him by failing to raise an issue, “we look to the merits of the

omitted issue.” Id. Now represented by counsel in the instant habeas appeal, Douglas

contends that the magistrate misunderstood his claim, namely, that his direct-appeal

counsel had inadequately briefed the Brady CAD report issue, not that his direct-

appeal counsel failed to raise it.

       But Douglas didn’t make this inadequate-briefing argument to the district

court. In Douglas’s pro se federal habeas petition, he contended that his direct-appeal

counsel had ineffectively assisted him by “not submitting” the CAD report to the

OCCA, which we construe to mean that his direct-appeal counsel didn’t raise the

Brady CAD report issue. R. vol. 1 at 11. The argument that direct-appeal counsel

failed to “submit” the CAD report isn’t an argument that direct-appeal counsel

                                            7
inadequately briefed the Brady CAD report issue. So we see no debatable legal issue

concerning the magistrate judge’s recommendation that Douglas’s Strickland claim

must fail because direct-appeal counsel didn’t omit the Brady argument.

      Nor could Douglas challenge the adequacy of direct-appeal counsel’s briefing

on the Brady CAD report issue. In the brief, direct-appeal counsel alleged that “[t]he

CAD report conflicted with the officers’ trial testimony, and had it been disclosed to

the defense prior to trial, it could have been used to impeach the officers.” Id. at 54.

Douglas’s present argument is the same—that the CAD report wasn’t disclosed

before trial, keeping him from using it to impeach Sergeant Cadena and Sergeant

Furrh. So the district court properly concluded that Douglas’s direct-appeal counsel

had raised the Brady CAD report issue—and absent an omitted issue to review on the

merits—the district court properly determined that the OCCA didn’t make a decision

contrary to controlling law.3




      3
         Douglas also requests a 28 U.S.C. § 2254(e) evidentiary hearing on the
question of whether the State disclosed the CAD report before trial. But because he
hasn’t proven “by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense,” such a hearing isn’t warranted. 28 U.S.C. § 2254(e)(2)(B); see also R. vol.
2 at 455 (CAD report showing two inquiries entered by Sergeant Cadena on the day
of the traffic stop, one for Long and one for Douglas).
                                            8
                         CONCLUSION

We deny Douglas a COA and dismiss this appeal.


                                 Entered for the Court


                                 Gregory A. Phillips
                                 Circuit Judge




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