                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   May 2, 2012
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 STEPHANIE DEANN DAVIS,

      Petitioner-Appellant,

 v.
                                                        No. 12-6007
 MILLICENT NEWTON-EMBRY,
                                                (D.C. No. 5:11-CV-00079-W)
 Warden of the Mabel Bassett
 Correctional Center,                                  (W.D. Okla.)

      Respondent-Appellee .




          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, GORSUCH, Circuit Judges.



      Stephanie Davis, along with a co-defendant, was tried in Oklahoma state

court for the first degree murder of Ms. Davis’s young child and on related

charges of neglect and abuse. Ms. Davis was convicted of the murder and

sentenced to life imprisonment without parole. After appealing that conviction to

the Oklahoma Court of Criminal Appeals, she brought a federal habeas petition

under 28 U.S.C. § 2254, alleging that her conviction was constitutionally invalid



      *
         This order is not binding precedent except under the doctrines of law of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.
on the grounds that she was entitled to a trial separate from her co-defendant and

that the prosecutor improperly commented on her Fifth Amendment right to

remain silent. After receiving the recommendations of a magistrate, the district

court denied the petition.

      The district court did not issue a certificate of appealability (COA) and Ms.

Davis does not specifically request one from us. We construe the district court’s

failure to issue a COA as a denial and, as a COA is a prerequisite of our

consideration of Ms. Davis’s claims, we construe her appeal as a request for such

a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 (10th Cir. 1997),

overruled on other grounds by United States v. Kunzman, 125 F.3d 1363 (10th

Cir. 1997).

      We may issue a COA only if Ms. Davis makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

standard she 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation omitted). That is, she must show that reasonable jurists might disagree

with the district court’s determination that the OCCA’s decision was not

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




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Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

      In support of her claim that she was entitled to a separate trial, Ms. Davis

points to Bruton v. United States, 391 U.S. 123 (1968), arguing that under Bruton

severance is required whenever co-defendant’s defenses are “mutually

antagonistic.” But as we have previously recognized, the clear scope of Bruton

encompasses only the situation where a co-defendant’s statement inculpating the

defendant is admitted into evidence. See United States v. Sarracino, 340 F.3d

1148, 1160 (10th Cir. 2003). And even then, “the exception created by Bruton is

a narrow one,” applying only “in those few contexts where the statement is so

inculpatory as to the defendant that the practical and human limitations of the jury

system cannot be ignored.” Id. (quotation omitted). In this case, while the

statements of Ms. Davis’s co-defendant may have been inferentially

incriminating, there is no real suggestion that they were so inculpatory as to

constitutionally require separate trials.

      Ms. Davis’s remaining claim, that the prosecutor improperly commented on

her right to remain silent, also does not merit habeas relief. As the district court

noted, the prosecutor’s comments were effectively invited by the defense itself,

and any error was undoubtedly harmless in light of the overwhelming evidence

supporting the conviction.




                                            -3-
Ms. Davis’s application for a COA is denied and this appeal is dismissed.



                               ENTERED FOR THE COURT


                               Neil M. Gorsuch
                               Circuit Judge




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