                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 20, 2009
                      UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT



 TONY E. BRANTLEY,

                 Petitioner-Appellant,                  No. 09-6032
          v.                                   Western District of Oklahoma
 MARTY SIRMONS, Warden,                         (D.C. No. 5:08-CV-00566-F)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Tony E. Brantley, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). We review the legal conclusions of a district court in a habeas

proceeding de novo. Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir.1990).

Because we conclude that Mr. Brantley has failed to make a substantial showing

of a denial of a constitutional right, we deny his request for a COA, and dismiss

the appeal. 28 U.S.C. § 2253(c)(2).



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      On April 7, 2004, police responded to a radio call about a suspicious car

parked at 2409 South Hudson in Oklahoma City. The occupants of the car told

the officers that they were watching 2312 South Hudson because they thought that

the occupants of that two-story duplex were making methamphetamine. The

officers proceeded to the house, where they smelled a strong chemical odor.

Police then saw Mr. Tony Brantley exit the bottom floor of the duplex. Upon

seeing the police, Mr. Brantley told the other occupants of the house that the

police had come. The officers placed Mr. Brantley in investigative detention. Mr.

Brantley told police that there were no other people inside the apartment.

However, three other individuals (Mary Howe, Donald Foglesong, and Honey

Michael) eventually left the bottom floor apartment. Officers placed them all in

investigative detention as well.

      Investigators found the elements of a large methamphetamine lab strewn

throughout the downstairs apartment, in the front yard, and in a shed attached to

the building. In addition to methamphetamine lab materials, police found a love

letter written to “Tony” in the bedroom of the house, and pay stubs belonging to

Mr. Brantley in the garage. The investigation further revealed that Ms. Michael,

Mr. Brantley’s girlfriend at the time, was renting the downstairs apartment where

most of the drug related materials were found.




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      Mr. Brantley was found guilty in state court of manufacturing

methamphetamine, possession of methamphetamine, and possession of marijuana

and was sentenced to eighty-six years in prison. Although Mr. Brantley denied

any involvement in the drug business, the government was able to impeach his

credibility at trial. For instance, after Mr. Brantley testified that he had never

kept items in the downstairs apartment, the government, on cross-examination

elicited an admission that three months before the incident at issue in the trial, he

had admitted to police that he was operating a meth lab in that same apartment.

      After review in the state courts, Mr. Brantley moved for habeas relief under

28 U.S.C. § 2254. He raised Fourth Amendment issues, alleged insufficiency of

the evidence, argued that he was improperly impeached, challenged the jury

instructions, and claimed that his counsel was ineffective. He also presented new

evidence that he contends demonstrates actual innocence: namely, the testimony

of Ms. Michael in a codefendant’s trial. The matter was assigned to a magistrate

judge who recommended that the petition be denied. The district court adopted

the magistrate judge’s report in its entirety.

                                      Discussion

      Federal habeas relief is only available when the state court’s adjudication

“(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court,” or “(2) resulted in a decision that was based on an unreasonable

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

proceeding.” 28 U.S.C. § 2254(d). 1

      Mr. Brantley directs our attention to Schlup v. Delo, 513 U.S. 298 (1995),

and urges that it sets forth the correct law to apply to the facts of this case.

Schlup provides that when a petitioner presents new evidence of actual innocence

and claims of constitutional violations that make it “more likely than not any

reasonable juror would have reasonable doubt,” House v. Bell, 547 U.S. 518, 538

(2006) (applying Schlup), habeas courts take a new look at otherwise procedurally

barred constitutional claims. Mr. Brantley argues that since he has a factual

innocence claim in addition to his claims of constitutional error, the lower

standard announced in Schlup applies. He seems to read Schlup as requiring

habeas courts to review the constitutional claims themselves at a lower standard,

turning Schlup’s gateway analysis into the proper standard for deciding

constitutional claims. What he misses is that the actual innocence claim is not

grounds for relief, but is only a gateway to review of the alleged constitutional


      1
        As a preliminary matter, Mr. Brantley is concerned that the courts have not
read his briefs. In the proceedings below and in his brief to this court, Mr.
Brantley included a paragraph that asks the court to acknowledge that the court
has in fact read that paragraph and therefore also read the brief. Since the lower
court did not acquiesce to the request, Mr. Brantley is convinced that his brief
was not read and that justice has been thwarted.
       We disagree. Courts are not required to fulfill the wishes, no matter how
seemingly benign, of litigants—pro se or otherwise. A court’s permissible choice
not to respond to a party’s request in no way suggests that the court is not
faithfully carrying out its duties.

                                          -4-
claims. Schlup governs that gateway; it does not address how review is

conducted once inside. Because none of Mr. Brantley’s constitutional claims are

procedurally barred, he is already inside the gateway and Schlup is of no further

relevance.

      We agree with the district court that Mr. Brantley’s Fourth Amendment

claims are unavailing since they were fully and fairly heard at the state level. 2

See Stone v. Powell, 428 U.S. 465, 494 (1976). The insufficiency of the evidence

claims were rightly dismissed under Jackson v. Virginia, 443 U.S. 307, 319

(1979), because there was enough evidence for a reasonable juror to find Mr.

Brantley guilty. Mr. Brantley’s evidentiary claims are dismissed because errors

of state law only provide room for federal habeas relief when they shock the

judicial conscience, and these claims did not approach that level. See Aycox v.

Lytle, 196 F.3d 1174, 1180 (10th Cir. 1999). The district court found no error in

the challenged jury instructions, and further found that even assuming the

instructions were wrong, the error would have been harmless. We agree with that

analysis. We dismiss Mr. Brantley’s ineffective assistance claims because there

is neither deficiency nor prejudice in the record under the familiar framework of

Strickland v. Washington, 466 U.S. 668, 687 (1984). Having found no errors so

      2
        Mr. Brantley makes much of a minor factual discrepancy over the
ownership of the apartment in December of 2003. We review district court
factual findings only for clear error and find none here. In any event, whatever
the truth of the matter, resolution of this issue would not affect our legal
conclusions in this case.

                                          -5-
far, we deny Mr. Brantley’s cumulative error claim. Finally, Mr. Brantley’s new

evidence is insufficient to warrant habeas relief. Because there have been no

constitutional violations in the state court proceedings, habeas relief is

unavailable from newly discovered evidence. See Herrera v. Collins, 506 U.S.

390, 400 (1993); Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999). In

any event, his accomplice’s testimony in a co-defendant’s trial does not disturb

our confidence in the verdict, in light of the extensive evidence of Mr. Brantley’s

involvement in the methamphetamine operation.

                                     Conclusion

      Accordingly, we DENY Mr. Brantley’s request for a COA and DISMISS

this appeal.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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