                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS April 16, 2013

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 GREGORY MICHAEL
 HERNANDEZ,
                                                       No. 13-6006
              Petitioner - Appellant,           (D.C. No. 5:11-CV-01356-R)
                                                     (W.D. Oklahoma)
 v.

 DAVID PARKER, Warden,

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, and ANDERSON and TYMKOVICH, 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 matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 32.1.
      Gregory Michael Hernandez, a state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to enable him to appeal the dismissal of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. In that petition, he

challenged his conviction following a jury trial on various counts of rape

involving his two stepdaughters, pursuant to which he was sentenced to a term of

life imprisonment, to be followed by further terms of imprisonment. For the

following reasons, we deny Mr. Hernandez a COA and dismiss this matter.



                                 BACKGROUND

      Mr. Hernandez was convicted by a jury of three counts of rape by

instrumentation of a victim under age fourteen, in violation of Okla. Stat. tit. 21,

§ 1111.1; one count of second-degree rape of a victim under age sixteen, in

violation of Okla. Stat. tit. 21, § 114(B); one count of first-degree rape of a victim

under age fourteen, in violation of Okla. Stat. tit. 21, § 1114(A)(1); and two

counts of engaging in a pattern of criminal offenses, in violation of Okla. Stat.

tit. 21, § 425. As indicated, the victims were Mr. Hernandez’s two stepdaughters,

A.H. and R.H.

      Mr. Hernandez was sentenced to twenty years imprisonment on each of the

three rape by instrumentation counts, fifteen years on the count of second-degree

rape of a victim under the age of sixteen, and life imprisonment on the count of

first-degree rape of a victim under the age of fourteen, all to be served

                                         -2-
consecutively. He received a sentence of two years on each of the pattern of

criminal offense counts, to run concurrently with each other but consecutively to

the rape counts.

      The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Mr.

Hernandez’s conviction in an unpublished summary opinion. Hernandez v. State,

No. F-2008-1048 (Okla. Crim. App., Dec. 16, 2010) (unpublished).

      Mr. Hernandez then filed the instant petition under 28 U.S.C. § 2254,

alleging eight grounds as the basis for relief: (1) improper exclusion of evidence

of prior false allegations and unreasonable restriction of cross-examination; (2)

insufficient evidence to support the conviction; (3) improper exclusion of

evidence that the victims’ mother (Mr. Hernandez’s common-law wife) had put

her daughters up to lying about the alleged abuse; (4) improper admission of

opinion testimony; (5) improper admission of evidence of other crimes and bad

character; (6) prosecutorial misconduct; (7) excessive sentence; and (8)

cumulative error.

      The matter was referred to a magistrate judge, who recommended denial of

the application for relief. Mr. Hernandez filed objections to the magistrate

judge’s report and recommendation. After considering those objections, the

district court in the Western District of Oklahoma adopted the recommendation

and denied the application. Mr. Hernandez appealed, and also filed a motion for

reconsideration, which the district court denied. Mr. Hernandez then filed an

                                         -3-
amended notice of appeal. He further requests a COA to enable us to address the

merits of his appeal and requests permission to proceed on appeal in forma

pauperis (ifp). We accordingly initially consider whether a COA should issue.



                                   DISCUSSION

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). 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 [application] 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 evaluating whether Mr. Hernandez has carried his burden, we undertake “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 537 U.S. at 338.

      Furthermore, where, as in this case, the state court addressed the merits of a

petitioner’s claims, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) provides the applicable standard of review. Its “deferential treatment

of state court decisions must be incorporated into our consideration of a . . .

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petitioner’s request for a COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.

2004). Under AEDPA, habeas relief is available 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,” 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). “This

highly deferential standard for evaluating state-court rulings demands that state-

court decisions be given the benefit of the doubt.” Hooks v. Workman, 689 F.3d

1148, 1163 (10th Cir. 2012) (further quotations omitted); see Cullen v. Pinholster,

131 S. Ct. 1388, 1398 (2011). Additionally, we presume under AEDPA that the

state court’s determination of a factual issue is correct; the applicant or petitioner

has the burden of rebutting this presumption by clear and convincing evidence.

28 U.S.C. § 2254(e)(1); Hooks, 689 F.3d at 1163.

      The district court’s lengthy and thorough decision applied this deferential

standard to the OCCA’s resolution of each of Mr. Hernandez’s arguments. We

review each argument in turn, beginning with Mr. Hernandez’s first argument

concerning prior false allegations by one of the victims and his claim that his

right to cross-examine his victims was improperly restricted.




                                          -5-
      I. Prior allegations; cross-examination

      In this argument, Mr. Hernandez claims that the trial court erred in

excluding evidence that Mr. Hernandez’s older victim, A.H., had previously made

false allegations of sexual abuse against three juvenile males, as well as against a

family friend, Chris Pulsifer. The charges against the juveniles were initially

filed in Tulsa County District Court, but were later dropped. It appears that

nothing developed from the accusation involving Mr. Pulsifer. Mr. Hernandez

argues that his right to present a complete defense was compromised by the trial

court’s refusal to permit him to introduce evidence of these prior allegedly false

accusations.

      Mr. Hernandez also argues that the trial court erred in restricting his ability

to cross-examine both of his victim-accusers. He claims he would have been able

to more effectively cross-examine A.H. with information about her prior

accusations; he claims he was, more generally, restricted in his cross-examination

of R.H. He thus alleges that the district court erred in failing to find that his

Sixth and Fourteenth Amendment rights had been thereby violated by these

limitations on his ability to effectively cross-examine his two accusers.

      In rejecting this argument as a basis for issuance of a writ, the district court

examined carefully the OCCA’s discussion of and resolution of this issue, as well

as the trial record relating to this issue. The district court then surveyed the

Supreme Court authority relevant to this claim and cited by Mr. Hernandez. With

                                          -6-
respect to his allegation that he was prevented from presenting a complete defense

by not being able to present evidence of the four men previously (allegedly)

accused by A.H., the district court concluded that:

            Petitioner has failed to demonstrate that the OCCA
      contradicted or unreasonably applied Supreme Court precedent.
      While it is clearly established that a state’s evidentiary rules cannot
      be applied mechanistically to prevent a defendant from presenting
      evidence in his own defense, it is also clear that a court may exclude
      evidence that is not relevant.

Hernandez v. Parker, 2012 WL 6202974, at *6 (W.D. Okla. Nov. 21, 2012)

(unpublished).

      With regard to Mr. Hernandez’s related argument that he was

impermissibly restricted in his cross-examination of both victims, the district

court again surveyed thoroughly and carefully the trial record, the OCCA’s

analysis, and relevant Supreme Court authority. The court concluded:

            The OCCA’s determination did not conflict with these
      [Supreme Court] decisions, and Petitioner has failed to establish that
      such a determination was an unreasonable application of Supreme
      Court precedent. The OCCA did not countenance the application of
      an arbitrary rule in upholding the trial court’s refusal to allow the
      cross-examination of A.H. about alleged prior false allegations but,
      instead, upheld the exclusion based on the lack of probative value.
      And, while recognizing the clearly established Constitutional right of
      cross-examination, the OCCA found that defense counsel’s cross-
      examination of R.H. was not “shut down” . . . Habeas relief is not
      warranted on this ground.

Id., at *8. We agree with the district court’s analysis in both of these statements.

The OCCA complied with applicable Supreme Court precedent.


                                         -7-
      Furthermore, except for bare citations to several Supreme Court decisions,

Mr. Hernandez makes no attempt to explain why or how the OCCA unreasonably

applied or contradicted applicable Supreme Court authority. While Mr.

Hernandez is pro se and entitled to a more liberal reading of his pleadings, we

cannot act as his advocate and create arguments for him. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation omitted).



      II. Sufficiency of evidence

      The district court then considered Mr. Hernandez’s second argument, that

there was insufficient evidence to prove his guilt beyond a reasonable doubt. The

district court began by noting that “clearly established Supreme Court precedent

provides that ‘the relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      After reviewing the OCCA ruling on this issue, the district court found that

“the OCCA properly identified and applied the Jackson standard in determining

Petitioner’s sufficiency of the evidence claim on direct review; its decision

therefore was not contrary to clearly established federal law.” Id. at *9. The

district court also concluded, after careful analysis of the OCCA’s decision and

applicable law, that “[t]he OCCA’s application of the Jackson standard was not

                                        -8-
unreasonable” and that Mr. Hernandez was not entitled to habeas relief on the

ground of insufficient evidence.

      Once again, we agree with the district court’s analysis of the OCCA’s

decision. The OCCA applied the correct standard (Jackson) to the evidence in

this case. Mr. Hernandez makes no serious argument to the contrary.



      III. Exclusion of Ms. Bryan’s statement

      The district court next considered Mr. Hernandez’s third argument—that

the trial court erred in excluding testimony by a woman named Julie Bryan

regarding a statement that Tanya Hernandez, the mother of the victims, allegedly

made to Ms. Bryan. In this statement, Ms. Hernandez purportedly told

Ms. Bryan that she (Ms. Hernandez) had instructed A.H. and R.H. to lie about

Mr. Hernandez’s sexual abuse of the girls. Mr. Hernandez argues that this

evidence was relevant because it provided the victims with a motive to testify

against him and it was admissible as a statement against penal interest under

Oklahoma’s hearsay rules.

      The OCCA rejected this argument, finding that the trial judge did not abuse

its discretion by excluding the testimony of Ms. Bryan. The OCCA specifically

stated that, “while the statement could have subjected the girls’ mother to

criminal liability, there was no corroborating evidence that the mother made the

statement. For a hearsay statement to be admissible as against a declarant’s

                                        -9-
interest in this manner, it must be corroborated as reliable by other evidence.” Id.

at *11. The federal district court, in reviewing the sufficiency of the OCCA’s

decision, stated that “the OCCA, while not citing Supreme Court precedent,

rejected Petitioner’s evidentiary claim in reliance upon state court precedent

which squarely addressed the constitutional issue and, consequently, its ‘decision

constitutes an adjudication of the federal claim[.]” Id. (quoting Harris v. Poppell,

411 F.3d 1189, 1196 (10th Cir. 2005)); see also Johnson v. Williams, 133 S. Ct.

1088 (2013). The district court therefore correctly held that the state court

(OCCA) had addressed Mr. Hernandez’s federal argument concerning Ms.

Bryan’s excluded statement.

      Additionally, the district court observed that Mr. Hernandez only cited

Chambers v. Mississippi, 410 U.S. 284 (1973), for his argument that he deserved

habeas relief because he was denied his fundamental right of defense. The

district court then held that the OCCA’s determination that Mr. Hernandez’s

rights were not violated was neither contrary to, nor an unreasonable application

of, the Chambers decision. The court held it would not grant Mr. Hernandez

habeas relief on this ground. We agree with this determination.



      IV. Vouching

      The court subsequently considered Mr. Hernandez’s fourth argument—that

the state improperly used two witnesses to vouch for, and thereby bolster, its

                                        -10-
case. The district court correctly observed that “[s]tate court rulings on the

admissibility of evidence may not be questioned in federal habeas proceedings

unless they render the trial so fundamentally unfair as to constitute a denial of

federal constitutional rights.” Hernandez, 2012 WL 6202974, at *13 (quoting

Brinless v. Crisp, 608 F.2d 839, 850 (10th Cir. 1979)). The court then concluded

that Mr. Hernandez’s trial “was not rendered fundamentally unfair by the

admission of [the two witnesses’] testimony.” Id. We agree fully with this

determination and discern no need to discuss it more fully than did the district

court. As with prior arguments, Mr. Hernandez has failed on appeal to

demonstrate why the district court’s analysis of the OCCA decision was

erroneous.



      V. Evidence of other crimes/wrongs/bad acts

      Mr. Hernandez’s fifth argument asserts that he was denied a fair trial by the

trial court’s admission of other crimes, wrongs, and bad acts, in the form of

testimony by A.H. and R.H. that Mr. Hernandez beat or spanked them, that he

hurt their mother and that he gave both girls tattoos. The OCCA rejected this

argument, explaining in detail why it found no “plain error” in connection with

the admission of evidence as to each item. The district court rejected Mr.

Hernandez’s challenge to the OCCA’s decision, stating:




                                         -11-
             To the extent the OCCA determined that admission of the
      challenged evidence was not plain error, “Oklahoma’s plain-error test
      is rooted in due process.” In this regard, there is “no practical
      distinction between [Oklahoma’s application] of plain error . . . and
      the federal due-process test, which requires reversal when error ‘so
      infused the trial with unfairness as to deny due process of law[.]’”
      “Because the OCCA applied the same test we apply to determine
      whether there has been a due-process violation, we must defer to its
      ruling unless it ‘unreasonably appli[ed]’ that test.” On habeas
      review, then, this court must determine whether the OCCA
      reasonably applied Supreme Court precedent when it declined to find
      plain error. Petitioner has cited no Supreme Court authority in
      support of his claim and has failed to establish that the OCCA
      unreasonably applied Supreme Court decisions when it determined,
      through a plain error analysis, that there had been no due process
      violation.

Id. (citations omitted). 1 We cannot improve or add anything significant to the

district court’s decision on this issue, and Mr. Hernandez provides no argument

contravening the district court’s analysis.



      VI. Prosecutorial misconduct

      The sixth argument launched by Mr. Hernandez alleges prosecutorial

misconduct, purportedly leading to the denial of a fair trial. More specifically,

Mr. Hernandez claims: the “prosecutor’s closing argument ‘vilified’ defense

counsel ‘by arguing [counsel] was beating up two young girls’; made ‘a plea for

sympathy and societal alarm by lumping together crimes committed against

      1
        The district court further observed that, to the extent the OCCA rejected
any of Mr. Hernandez’s arguments on state law grounds only, it would only grant
relief were it to find a denial of due process of law. It found no such denial in
this case.

                                        -12-
children not attributable to petitioner’; . . . inject[ed] improper victim impact

evidence into the trial; and . . . argu[ed] to the jury ‘that a verdict of not guilty

would make what was alleged to have happened to [A.H. and R.H.] “a whole lot

worse.”’” Id. at *16 (quoting Supporting Br.). The OCCA rejected these

arguments, explaining why each instance of claimed misconduct was, in context,

proper.

      The federal district court noted that, in this court, the proper “test for

determining whether or not prosecutorial comments violated due process is that

set forth by the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637

(1974).” Id. at *17. Under this test, “prosecutorial comments violated due

process only when the prosecutor’s conduct is so egregious in the context of the

entire trial that it renders the trial fundamentally unfair.” Id. (citing Donnelly,

416 U.S. at 642-48). To satisfy that test, the district court noted that Mr.

Hernandez “must demonstrate persistent and pronounced misconduct or that the

evidence was so insubstantial that absent the remarks, a conviction probably

would not have occurred.” Id. The court found, correctly, that Mr. Hernandez

failed to make the required showing.



      VII. Excessive sentence

      Mr. Hernandez’s seventh argument avers that his sentence is excessive.

The district court observed that the OCCA had found on direct review that each

                                           -13-
component of Mr. Hernandez’s sentence was within the applicable state statutory

limits. And, Mr. Hernandez failed to argue that his sentence was outside the

range of punishment set by the Oklahoma legislature. The court accordingly

found that his sentence “does not violate the Eighth Amendment’s proscription

against cruel and unusual punishment.” Id. We agree.



      VIII. Cumulative error

      Mr. Hernandez’s final argument alleges cumulative error. The OCCA

found no error, and therefore no cumulative error. We reach that same

conclusion.



                                   CONCLUSION

      In sum, we find that the district court’s analysis of the OCCA’s decision

was thorough and correct. The court properly analyzed the OCCA’s discussion

and conclusion through the lens of AEDPA. Although Mr. Hernandez himself

failed to articulate the proper grounds upon which to challenge the OCCA’s

determinations and upon which to seek a COA, the district court’s decision

identified and applied the appropriate standards for reviewing that opinion. We

cannot add anything substantive to the district court’s analysis. We accordingly

find that Mr. Hernandez has failed to meet the standards for issuance of a COA,

for substantially the reasons set forth in the district court’s decision.

                                          -14-
      For the foregoing reasons, we DENY a COA and DISMISS this matter. We

DENY Mr. Hernandez’s request to proceed on appeal ifp.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




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