                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  October 29, 2018
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 MICHAEL SCOTT ELDER,

              Petitioner - Appellant,

 v.                                                     No. 18-6074
                                                (D.C. No. 5:16-CV-01408-HE)
 JIM FARRIS, Warden,                                    (W.D. Okla.)

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.


      Michael Scott Elder moves for a certificate of appealability (“COA”) to

appeal from the district court’s denial of his application for a writ of habeas

corpus under 28 U.S.C. § 2254 (the “Petition”). Exercising jurisdiction under 28

U.S.C. § 1291, we deny Mr. Elder’s request for a COA and dismiss his appeal.

                                          I

      Mr. Elder was charged in Oklahoma state court with one count of first-

degree murder with malice aforethought. Following a trial, a jury convicted Mr.



      *
              This Order is not binding precedent, except under the doctrines of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.
Elder of the lesser-included offense of first-degree manslaughter. In April 2014,

Mr. Elder was sentenced, consistent with the jury’s recommendation, to fifteen

years’ imprisonment. Mr. Elder appealed to the Oklahoma Court of Criminal

Appeals (“OCCA”), which affirmed his conviction.

      Mr. Elder filed the Petition in federal district court in December 2016. Mr.

Elder ultimately asserted five grounds for relief on which he now seeks a COA.

First, he argued that the evidence at trial was insufficient to disprove self-defense

or defense of another beyond a reasonable doubt. Second, he argued that the trial

court violated his due-process rights by refusing to instruct the jury on

Oklahoma’s “Stand Your Ground” law. Third, he argued that he was deprived of

his right to present a defense due to the exclusion of evidence about the victim’s

state of mind. Fourth, he argued that prosecutorial misconduct rendered his trial

unfair. Finally, he argued that the cumulative effect of the errors underlying his

other claims deprived him of a fair trial.

      Following briefing, a magistrate judge recommended that the Petition be

denied. Mr. Elder objected, but the district court adopted the magistrate judge’s

recommendation and denied the Petition. The district court first ruled that there

was sufficient evidence to permit a rational jury to find that Mr. Elder was not

acting in self-defense or defense of another at the time of the killing, and the

OCCA’s ruling on this issue was therefore not unreasonable. Next, the district

court ruled that any argument that the OCCA interpreted Oklahoma’s “Stand Your

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Ground” law incorrectly was not cognizable on federal habeas review and that the

omission of a “Stand Your Ground” instruction did not render the trial so

fundamentally unfair as to violate due process.

      The district court then observed that the OCCA had rejected Mr. Elder’s

argument concerning evidence of the victim’s state of mind because the evidence

was irrelevant. The district court stated that it was “difficult to fault that

conclusion as a matter of customary evidence rules” but stressed that, in the

setting of federal habeas review, its inquiry actually was “more

limited”—centered on the issue of fundamental fairness. Aplt.’s App. at 51. And

the district court found that Mr. Elder’s trial was not rendered fundamentally

unfair by the OCCA’s resolution of this evidentiary issue.

      The district court then observed that, although Mr. Elder had alleged

various instances of prosecutorial misconduct on direct appeal, his instant

objections focused on a single question that the prosecutor had asked Mr. Elder,

invoking the biblical proscription against taking human life: “Mr. Elder, what’s

the Sixth Commandment?” Id. The district court noted that the trial court

sustained an objection to this question and gave a curative instruction, and the

OCCA did not unreasonably conclude that these measures cured any error.

Finally, having found no constitutional errors underlying Mr. Elder’s other

claims, the district court rejected his cumulative-error claim. The district court

also denied a certificate of appealability.

                                            3
      The district court entered judgment on March 27, 2018, and Mr. Elder

timely filed a notice of appeal.

                                         II

                                         A

      A COA is a jurisdictional prerequisite to this court’s review of the merits of

a § 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S.

322, 336 (2003); see also Gonzalez v. Thaler, 565 U.S. 134, 142 (2012)

(discussing the “‘clear’ jurisdictional language” in § 2253(c)(1)). We may only

issue a COA where “the applicant has made 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 (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 v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011)

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

      Where the OCCA ruled on the merits of a claim, Mr. Elder is not entitled to

relief unless the OCCA’s ruling 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 the light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). With respect to these rulings, “the decision whether to grant

                                         4
[the] COA request rests on whether ‘reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong’ in light of the

deference owed to the OCCA’s adjudication of [the] claims.” Howell v.

Trammell, 728 F.3d 1202, 1225 (10th Cir. 2013) (quoting Miller-El, 537 U.S. at

338).

                                         B

        We have reviewed Mr. Elder’s COA motion and brief in support. We have

also reviewed the record, including the magistrate judge’s recommendation and

the district court order described supra. Based upon our review, the district

court’s reasoning and conclusions are sound. Mr. Elder has not made a

substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2),

and no reasonable jurist could debate whether the district court properly denied

the Petition. See Harris, 642 F.3d at 906. 1 Mr. Elder is not entitled to a COA,


        1
             The record arguably suggests that certain of Mr. Elder’s claims, i.e.,
the federal due-process component of his claim concerning the “Stand Your
Ground” instruction or the precise cumulative-error claim now presented, were
not presented to the OCCA. The district court’s order did not discuss exhaustion,
but we observe that these claims would indisputably fail even on de novo review,
so we need not pursue the matter further. See 28 U.S.C. § 2254(b)(2) (stating that
habeas corpus petition may be denied on the merits notwithstanding failure to
exhaust state court remedies); Milton v. Miller, 812 F.3d 1252, 1265–66 (10th Cir.
2016) (reviewing unexhausted claim de novo).

      We also note that we consider Mr. Elder’s request for relief due to
prosecutorial misconduct to be limited to the “Sixth Commandment” question,
with additional instances of alleged misconduct constituting at most background
                                                                     (continued...)

                                         5
and this appeal must be dismissed.

                                         III

      For the foregoing reasons, we DENY Mr. Elder’s application for a COA

and DISMISS his appeal.



                                       ENTERED FOR THE COURT



                                       Jerome A. Holmes
                                       Circuit Judge




      1
        (...continued)
information or evidence of intent. This was how Mr. Elder presented this claim in
the district court, and Mr. Elder is not permitted to assert grounds for relief for
the first time on appeal. See Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir.
2013) (declining to consider in habeas appeal a claim that was not raised in district
court); Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (“Parker raises several
other alleged failures of counsel to object at trial, all of which he has waived by
failing to assert them in his district court habeas petition.”).

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