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

                             FOR THE TENTH CIRCUIT                                May 3, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
JOHN KENNEDY ONYANGO,

      Petitioner - Appellant,
                                                              No. 18-6007
v.                                                    (D.C. No. 5:17-CV-00384-HE)
                                                              (W.D. Okla.)
JANET DOWLING, Warden,

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

                                   I. BACKGROUND

       Oklahoma state prisoner John Kennedy Onyango was convicted for a rape that

occurred in July 2010. He was sentenced to 35 years in prison.

       Mr. Onyango’s defense was that the victim’s mother had fabricated the charge and

had coached the victim because he had caused her boyfriend to be fired from a job.

Before his trial, the state court refused Mr. Onyango’s request to present a state social

worker’s opinion that the mother had coached the victim and the victim’s brother on what

to say to authorities during an investigation in 2009 of the mother and her boyfriend for



       *
         This order is not binding precedent, except under the doctrines of law of the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.
child abuse. At the trial, Mr. Onyango had the opportunity to cross-examine the victim,

the mother, and a forensic interviewer of the victim. He also testified in his own defense.

       On appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) denied that this

ruling was an abuse of discretion or that it violated Mr. Onyango’s right to present a

defense under the Sixth and Fourteenth Amendments, reasoning as follows:

       Although a defendant has a constitutional right to present evidence
       in his defense, the evidence proffered must conform to well
       established rules of evidence. See Holmes v. South Carolina, 547
       U.S. 319, 326 (2006). Here, the trial court did not abuse its
       discretion as the evidence proffered did not meet the relevancy
       requirements of the evidence code. The evidence was not relevant to
       the credibility or believability of the victims regarding the issues in
       this case. This proposition is, therefore, denied.

ROA at 41.

       The federal district court denied habeas relief under 18 U.S.C. § 2254 to Mr.

Onyango, adopting a magistrate judge’s Report and Recommendation (“R&R”) and

holding the OCCA’s decision was not contrary to or an unreasonable application of

clearly established Supreme Court law under § 2254(d)(1) of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). The court also denied a certificate of

appealability (“COA”) to Mr. Onyango. ROA at 35.

       Mr. Onyango now seeks a COA to appeal the district court’s denial of his

§ 2254 application. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the

final order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court”). Exercising jurisdiction under 28 U.S.C.

§ 1291, we deny his request and dismiss this matter.


                                             2
                                    II. DISCUSSION

                                   A. COA and AEDPA

       To obtain a COA, Mr. Onyango must make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists

could debate whether . . . 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) (quotations omitted).

       AEDPA governs federal habeas review of state court decisions. See 28 U.S.C.

§ 2254. If state court proceedings decided the merits of a claim, a federal court may

grant habeas relief only if 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,” 28 U.S.C. § 2254(d)(1); or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2); see also Harrington v. Richter, 562 U.S. 86, 97-

98 (2011). In deciding whether to grant a COA, we are required to “look to the

District Court’s application of AEDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable among jurists of reason.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003).

       Under AEDPA, a federal court may “issue the writ” only when the applicant

shows “there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 U.S. at 102

(emphasis added). Thus, “even a strong case for relief does not mean the state court’s

                                              3
contrary conclusion was unreasonable.” Id. “‘If this standard is difficult to meet’—and it

is—‘that is because it was meant to be.’” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting

Richter, 562 U.S. at 102). Indeed, AEDPA stops just “short of imposing a complete bar

on federal-court relitigation of claims already rejected in state proceedings.” Richter, 562

U.S. at 102. Accordingly, “[w]e will not lightly conclude that a State’s criminal justice

system has experienced the ‘extreme malfunction’ for which federal habeas relief is the

remedy.” Titlow, 572 U.S. at 20 (quoting Richter, 562 U.S. at 102) (alteration omitted).

                                        B. Analysis

       In his brief to this court, Mr. Onyango does not mention AEDPA other than to

summarize the district court’s conclusion that, “in terms of the AEDPA, the decision of

the OCCA was not contrary to clearly established law.” Aplt. Br. at 18. The district

court specifically stated that “the OCCA’s determination of the issue did not involve an

unreasonable application of Supreme Court precedent.” ROA at 34. Mr. Onyango has

not shown “there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme] Court’s precedents,” Richter, 562 U.S. at 102

(emphasis added), or that reasonable jurists could debate the district court’s denial of his

§ 2254 application.

       Although the OCCA relied on Holmes to affirm, Mr. Onyango does not mention it.

Instead, as in the district court, he relies on Taylor v. Illinois, 484 U.S. 400 (1988); Crane

v. Kentucky, 476 U.S. 683 (1986); and Washington v. Texas, 388 U.S. 14 (1967), for the

general proposition that the “right to present a defense” includes “the right to call



                                              4
witnesses” whose “testimony is relevant to the defense.” Aplt. Br. at 20.1 But, as the

magistrate judge pointed out in the R&R, these decisions are not on point. ROA at 13

n.7. In these cases, the Supreme Court considered, respectively, rules excluding

(1) evidence as a sanction, (2) the manner a confession was secured, and (3) testimony of

principals, accomplices, and accessories in support of each other. Crane and Washington

addressed whether the exclusion of evidence was based on an arbitrary rule. Taylor

involved the exclusion of testimony as a sanction for the defendant’s discovery

violations.

       In this case, by contrast, the state trial court applied Oklahoma’s law on relevance.

Under Oklahoma Statutes title 12, § 2401, “‘Relevant evidence’ means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Under § 2403, “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair

and harmful surprise.” Unlike the rules in the cases cited by Mr. Onyango, the ones

applied here were “well-established rules of evidence [that] permit trial judges to exclude

       1
         A defendant’s right to present a defense is essential to a fair trial but is not
absolute. United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998). For
example, “[t]he accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”
Taylor v. Illinois, 484 U.S. 400, 410 (1988). “A defendant must abide the rules of
evidence and procedure.” Bautista, 145 F.3d at 1151-52; see United States v.
Prince–Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (“[C]riminal defendants do not have
a right to present evidence that the district court, in its discretion, deems irrelevant or
immaterial.”)
                                             5
evidence if its probative value is outweighed by certain other factors such as unfair

prejudice, confusion of the issues, or potential to mislead the jury.” Holmes, 547 U.S.

at 326.

          Based on the record, and given that the opinion testimony Mr. Onyango wished to

present stemmed from an investigation of the victim’s mother and her boyfriend that

occurred during the year before the rape, the OCCA determined that “the trial court did

not abuse its discretion as the evidence proffered did not meet the relevancy requirements

of the evidence code.” ROA at 41.

          In its order denying Mr. Onyango’s § 2254 application, the district court said “the

trial court ruled that the disputed evidence was not relevant and that the danger of

prejudice outweighed its probative value.” Id. at 33. Although it also said that the state

“trial court’s decision to exclude the evidence might reasonably be debated” and that

“some judges might well have reached a [different] conclusion,” id. at 34, the district

court did not address the OCCA’s conclusion that there was no abuse of discretion. This

was consistent with the rule that “it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.’’ Estelle v. McGuire, 502

U.S. 62, 67-68 (1991).2 The district court denied habeas relief because Mr. Onyanga’s

application foundered on the AEDPA standard: “[T]he OCCA’s determination of the

issue did not involve an unreasonable application of Supreme Court precedent.” ROA at



          2
        This court has said that “an evidentiary ruling infringes a defendant’s due
process rights only if the district court violates the Federal Rules of Evidence.”
United States v. Oldbear, 568 F.3d 814, 820 (10th Circuit 2009).
                                               6
34. Mr. Onyango has not shown otherwise or that reasonable jurists could debate the

district court’s decision.

       Regardless of the state-law reason the evidence was excluded, “to be eligible for

federal habeas relief, [Mr. Onyango] must prove that the state trial court's evidentiary

ruling rendered the trial so fundamentally unfair as to constitute a denial of federal

constitutional rights,” Duvall v. Reynolds, 139 F.3d 768, 789 (10th Cir. 1998) (quotations

omitted); see also Mathews v. Price, 83 F.3d 328, 332 (10th Cir. 1996), and that any such

violation was contrary to or an unreasonable application of clearly established Supreme

Court law. Mr. Onyango has not done so, nor has he shown that reasonable jurists could

debate the district court’s application of AEDPA to deny habeas relief.

                                   III. CONCLUSION

       We deny Mr. Onyango’s request for a COA and dismiss this matter.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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