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

                             FOR THE TENTH CIRCUIT                          October 24, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 PHILLIP STEVEN BORDEN,

       Petitioner - Appellant,

 v.                                                             No. 19-5032
                                                    (D.C. No. 4:16-CV-00024-CVE-JFJ)
 JASON BRYANT, Warden, James                                    (N.D. Okla.)
 Crabtree Correctional Center,

       Respondent - Appellee.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

       Applicant Phillip Steven Borden was convicted by an Oklahoma jury on several

charges arising out of sexual abuse of two children. He was sentenced to three terms of

life imprisonment, and his convictions were affirmed on direct appeal. After he

unsuccessfully sought state postconviction relief, he filed an application for relief under

28 U.S.C. § 2254 in the United States District Court for the Northern District of

Oklahoma. The district court denied his application. He now requests a certificate of

appealability (COA) from this court. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to

appeal denial of relief under § 2254). We deny his request and dismiss the appeal.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing 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 marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that 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,” or “was based on an

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

court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A federal court may not grant relief

simply because it concludes in its “independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Gipson v.

Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation marks omitted).

Rather, “[i]n order for a state court’s decision to be an unreasonable application of [the

Supreme] Court’s case law, the ruling must be objectively unreasonable, not merely

wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728

(2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must show

that the state court’s ruling was so lacking in justification that there was an error well




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understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. (ellipsis and internal quotation marks omitted).

       In addition, AEDPA establishes a deferential standard of review for state-court

factual findings. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing evidence.’”

Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).

Further, the Supreme Court has held that review under § 2254(d)(1), just as under

§ 2254(d)(2), “is limited to the record that was before the state court that adjudicated the

claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7.

“AEDPA’s deferential treatment of state court decisions must be incorporated into our

consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d

935, 938 (10th Cir. 2004).

       Applicant was convicted of the rape and molestation of two young girls, De. H.

and Da. H., whom he met while dating their mother. After the dating ended, the girls

continued to visit Applicant’s home. “The victims could not provide exact dates for the

incidents, but described them in relation to the three houses that petitioner occupied

during an eight year period.” Dist. Ct. Op. at 1. Applicant seeks a COA on three

grounds: (1) the prosecution unduly interfered with witnesses; (2) he was denied due

process because he was not provided adequate notice of the conduct that was the basis of

the charges against him; and (3) the prosecution knowingly presented false testimony.

       On his first claim Applicant alleges that the prosecution intimidated three

witnesses into not testifying in his defense. The state trial court, however, found that the


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evidence of interference submitted by Applicant was not sufficient to support a finding

that the prosecution had interfered with the defense witnesses. The findings of the state

court are presumptively correct, and Applicant did not rebut the findings with clear and

convincing evidence. No reasonable jurist could challenge the district court’s disposition

of this claim.

       On his second claim Applicant argues that his due-process rights were violated

because the information filed against him did not include specific dates on which the

charged conduct took place. See Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No

principle of procedural due process is more clearly established than that notice of the

specific charge . . . [is] among the constitutional rights of every accused in a criminal

proceeding.”). The OCCA determined that the information was sufficiently detailed to

appraise Applicant of the charges against him and enable him to prepare his defense.

Applicant cites state-court opinions holding that failure to identify a sufficiently precise

timeframe during which the charged conduct took place can violate due process; but he

needs opinions of the United States Supreme Court that address circumstances involving

an allegedly overbroad period of time in which the charged offense occurred, see House

v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (“[C]learly established law consists of

Supreme Court holdings in cases where the facts are at least closely-related or similar to

the case sub judice.”). Because he has not directed our attention to any such opinion, no

reasonable jurist could challenge the district court’s disposition of this claim.

       On his third claim, Applicant argues that his due-process rights were violated

because the prosecution knowingly presented false testimony by Bucky King. See Napue


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v. Illinois, 360 U.S. 264, 269 (1959) (“[A] conviction obtained through use of false

evidence, known to be such by representatives of the State, must fall under the Fourteenth

Amendment.”). But Applicant never asserted, much less presented evidence, that the

prosecution knew that King’s testimony was false. No reasonable jurist could challenge

the district court’s disposition of this claim.

       Finally, Applicant argues that he is entitled to an evidentiary hearing on his first

and third claims. We are not persuaded. An evidentiary hearing is appropriate only if the

state court’s decision was contrary to or an unreasonable application of clearly

established federal law under § 2254(d)(1) or an unreasonable determination of the facts

under § 2254(d)(2), and the prisoner acted diligently in developing the factual record in

state court under § 2254(e)(2). See Milton v. Miller, 744 F.3d 660, 672–73 (10th Cir.

2014). When the state court has adjudicated the merits of an issue, the federal court

cannot consider evidence outside the state-court record when it reviews whether the

applicant has shown that the state-court decision was contrary to clearly established

federal law. See Pinholster, 563 U.S. at 180–81. Relying on Townsend v. Sain, 372 U.S.

293, 312 (1963), and Littlejohn v. Trammell, 704 F.3d 817, 858 (10th Cir. 2013),

Applicant asserts he was entitled to an evidentiary hearing because he diligently tried to

develop the evidentiary record in the state court, as required by § 2254(e)(2). But

Townsend was decided before § 2254(d)(1) was enacted as part of AEDPA, and

Littlejohn applied the pre-§ 2254(d)(1) standard of review because the state court had

failed to adjudicate the merits of the applicant’s claim, see 704 F.3d at 857 n.21. In this

case we have ruled that Applicant has not satisfied § 2254(d) on any of his claims.


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Pinholster makes it clear that therefore the district court was not required to conduct an

evidentiary hearing. See 563 U.S. at 180–86.

       We DENY a COA and DISMISS the appeal.


                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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