                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 18, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 TRAVIS FOOTE,

              Petitioner - Appellant,                    No. 08-6250
 v.                                                    (W.D. Oklahoma)
 GREG PROVINCE, Warden,                           (D.C. No. CV-08-00223-F)

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Petitioner/appellant Travis Foote, an Oklahoma prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to enable him to appeal the district



      *
        This order and judgment is not binding precedent except under the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.
court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We

deny Foote a COA and dismiss this appeal.



                                 BACKGROUND

      Foote is currently serving a sixty-year sentence in the custody of the

Oklahoma Department of Corrections for first degree rape, aiding and abetting

assault and battery with intent to kill, and kidnaping. We derive the basic facts

about this case from the federal magistrate judge’s report and recommendation

(“R&R”), which the district court adopted, and the basic facts of which Foote

does not dispute:

             In a charging information filed on December 16, 2003, . . .
      Petitioner was charged with the offenses of Rape in the First Degree,
      Forcible Oral Sodomy, and Assault and Battery with Intent to Kill.
      The charges . . . involve a violent sexual assault of a female victim
      by two men. The victim was taken by the men in a pick-up truck to a
      remote location in Pottawatomie County where she was raped,
      beaten, and then thrown over a bridge. The victim survived the
      attack, although she sustained serious injuries in the approximately
      35-foot fall from the bridge, including a broken neck. . . .

             [After an initial mistrial], . . . Petitioner was charged with the
      offenses of Rape in the First Degree, Assault and Battery with Intent
      to Kill, and Kidnapping. . . . [T]he jury found Petitioner guilty of all
      three counts and recommended sentences of thirty years, twenty
      years, and ten years, respectively. Petitioner was sentenced on
      April 6, 2005, to terms of imprisonment consistent with the jury’s
      recommendation, and the trial court ordered the sentences to run
      consecutively. New counsel was appointed by the court to represent
      Petitioner on appeal.




                                         -2-
        In his direct appeal, Petitioner contended that (1) the
admission of statements made by Petitioner to his wife during their
marriage violated state law protecting marital communications;
(2) the prosecutor’s improper reference to flight during the trial
deprived Petitioner of a fair trial; (3) prosecutorial misconduct during
closing arguments which materially misrepresented the law deprived
Petitioner of a fair trial; (4) admission of victim impact evidence to
elicit jury sympathy for the victim was highly prejudicial and defense
counsel’s failure to object to this evidence was ineffective assistance
of counsel; and (5) cumulative errors occurring during the trial
deprived Petitioner of a fair trial. The State responded in opposition
to each of these contentions. In an unpublished summary opinion,
the Oklahoma Court of Criminal Appeals (“OCCA”) rejected each of
Petitioner’s claims and affirmed the conviction and sentences.

       In a post-conviction application filed pro se in the district
court in March 2007, Petitioner alleged that the trial court erred in
admitting evidence of other crimes; the jury was compromised by
receiving external communication from the media and improper
contact with a judge, thereby denying Petitioner a fair trial;
Petitioner was denied effective assistance of trial counsel; the
evidence was insufficient for the jury to have found Petitioner guilty
of the charged offenses; and Petitioner was denied effective
assistance of appellate counsel based on counsel’s failure to assert
the foregoing claims. The [state] district court denied the
application. The OCCA issued a decision on August 6, 2007,
affirming the [state] district court’s decision. The OCCA rejected
Petitioner’s claim of ineffective assistance of appellate counsel on its
merits and found that Petitioner had procedurally defaulted the
remaining claims due to his failure to raise the claims in his direct
appeal and failure to show sufficient cause for the default.

       Petitioner, who is represented by counsel, now seeks federal
habeas relief with respect to the convictions. . . . In his Petition,
Petitioner asserts the following claims for relief. In ground one,
Petitioner contends that he was denied effective assistance of trial
counsel. In ground two, Petitioner asserts that he was denied
effective assistance of appellate counsel. In ground three, Petitioner
contends that “evidence violating spousal privilege was admitted.”
In ground four, Petitioner raises a claim of prosecutorial misconduct
during closing arguments in which he asserts the “prosecutor

                                   -3-
      materially misrepresented the law.” In his fifth ground for habeas
      relief, Petitioner asserts error in the “introduction of other crimes
      evidence.” . . . In ground six, Petitioner contends he was denied an
      “impartial jury.” . . . In ground seven, Petitioner contends
      “insufficient evidence” was presented at trial . . . . In his eighth
      ground, Petitioner asserts that the “jury did not assess punishment.”

R&R at 2-5, R. Vol. 2 (citations omitted).

      The R&R noted that Foote filed a supplemental brief in support of his

petition, in which he purported to adopt several arguments from his direct appeal,

as well as all the arguments from his post-conviction application, although he did

not address the merits of all of these claims. Additionally, the R&R observed that

Foote failed to make “any reference . . . to the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) and the AEDPA standard governing Petitioner’s claims

that were addressed and rejected on their merits by the OCCA.” Id. at 5.

Additionally, “there is no recognition in the Petition or Brief in Support of the

Petition that Petitioner’s claims asserted in his post-conviction application, other

than his claim of ineffective assistance of appellate counsel, were found by the

OCCA to have been procedurally defaulted due to Petitioner’s failure to assert

those claims in his direct appeal. Nor has Petitioner made any effort to tailor the

procedurally-defaulted claims in a manner that addresses the requirements of the

procedural default doctrine.” Id. at 5-6.

      Applying the AEDPA standard of review, the magistrate judge rejected all

of Foote’s arguments, and recommended denial of Foote’s petition. Foote filed


                                            -4-
objections to the R&R. Foote’s counsel then filed a motion to withdraw from

representation of Foote, which the district court granted.

      The district court subsequently reviewed the R&R, as well as Foote’s

objections, according them a liberal construction in view of Foote’s pro se status.

The court made additional findings regarding “two matters raised by petitioner in

his pro se objections.” Order at 2, R. Vol. 2. The court found as follows:

             Petitioner first argues he had ineffective assistance of appellate
      counsel during his direct appeal because his appellate counsel failed
      to pursue an argument in petitioner’s post-conviction appeal based on
      Anderson v. State of Oklahoma, 130 P.3d 273 (2006). 1 Anderson,
      which was decided in 2006 after petitioner was convicted in March
      of 2005, states that “[a] trial court’s failure to instruct on the 85%
      Rule in cases before this decision will not be grounds for reversal.”
      Id. at 283. Thus, Anderson provides that the decision is to be given
      only prospective relief. Anderson also states that its ruling “does not
      amount to a substantive change in the law.” Id. at 283.

             When ineffective assistance of counsel is alleged, the
      reasonableness of the challenged conduct must be evaluated from
      counsel’s perspective at the time of the alleged error. United States
      v. Blackwell, 127 F.3d 947, 955 (10th Cir. 1997), citations omitted.
      It is not reasonable to expect petitioner’s appellate counsel to guess
      that a decision characterized by the issuing court as non-substantive
      and as not providing grounds for reversal, would apply to petitioner’s
      appeal. 2 Moreover, the 85% Rule is based on law specific for

      1
       Anderson holds that the “85% Rule,” which requires a convicted defendant
to serve at least 85% of his sentence within the Department of Corrections, is a
specific and readily understood concept about which the jury should be informed.
Anderson, 130 P.3d at 282.
      2
        Petitioner relies on an order in Chandler v. Oklahoma, filed in the Court of
Criminal Appeals on April 15, 2008, a date after his direct appeal was concluded,
for petitioner’s position that Anderson can be applied retroactively. The order in
                                                                       (continued...)

                                         -5-
      Oklahoma. Habeas relief under the Antiterrorism and Effective
      Death Penalty Act allows relief only where the state ruling 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). Petitioner has not shown an
      unreasonable application of controlling Supreme Court precedent.

             Petitioner’s second pro se argument is based on James v. State,
      152 P.3d 255 (Okla. Crim. App. 2007), decided on January 8, 2007,
      after the conclusion of petitioner’s direct appeal. Petitioner correctly
      argues that in James, the Court of Criminal Appeals reversed its
      previously more liberal stance on allowance of evidence of other
      crimes or bad acts in sexual assault cases, no longer allowing, in
      certain cases, the “greater latitude” rule previously set out in Myers
      v. State, 17 P.3d 1026 (Okla. Crim. App. 2000). Petitioner argues
      that damaging evidence regarding testimony by Dawn Finney, his ex-
      wife, about statements petitioner made to her during sex play while
      she role-played as a hitchhiker, should not have been allowed in
      evidence under James. The statement petitioner argues should have
      been excluded was Finney’s testimony that petitioner told her, during
      fantasy sex play, that “nobody rides for free.” This was damaging
      evidence, petitioner argues, because the victim of the crimes of
      which petitioner was convicted testified that something similar was
      said to her during the criminal acts.[] Such a statement, made during
      sexual role-playing between consenting adult partners, is not a crime,
      bad act, or other act so similar to the act charged as to arguably make
      the statement inadmissible. James is of no help to petitioner.

Id. at 2-3. The court then overruled Foote’s objections to the R&R, accepted and

adopted the R&R, and denied Foote’s habeas petition. The district court granted

Foote’s request to proceed on appeal in forma pauperis, but denied his request

for a COA. Foote accordingly requests this court to issue a COA to enable him to

appeal the district court’s denial of his habeas petition.

      2
        (...continued)
Chandler is limited to “the particular facts of this case.” (Order, p.5, attached to
petitioner’s supplemental filing, doc. no. 29, ex.2).

                                          -6-
                                    DISCUSSION

      “A COA is a jurisdictional pre-requisite to our review.” Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). We will issue a COA only if

Foote makes a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make this showing, he must establish 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)

(internal quotations omitted). Because the district court also dismissed some of

Foote’s arguments on procedural grounds, Foote must also demonstrate, with

respect to those issues, both that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Id. “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist

would not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.; see also Clark, 468

F.3d at 713-14.

      In his pro se appellate brief, Foote appears to focus basically upon the two

issues the district court discussed separately in its order adopting the R&R. We

agree with the district court that these issues do not warrant the issuance of a

                                          -7-
COA. We have carefully read Foote’s submissions, the R&R, the district court’s

order, and the entire record in this case. For substantially the reasons stated in

the R&R, adopted by the district court, and the district court’s order, we conclude

that Foote has failed to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore deny his application

for a COA and dismiss this appeal.



                                  CONCLUSION

      For the foregoing reasons, the request for a COA is DENIED and this

matter is DISMISSED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                          -8-
