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

                         FOR THE TENTH CIRCUIT                         July 15, 2019
                       _________________________________
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    BYRON GAY,

          Petitioner - Appellant,

    v.                                               No. 18-1435
                                            (D.C. No. 1:18-CV-00188-RBJ)
    SCOTT DAFFENBACH, Warden,                         (D. Colo.)
    Fremont Correctional Facility; THE
    ATTORNEY GENERAL OF THE
    STATE OF COLORADO,

          Respondents - Appellees.
                     _________________________________

         ORDER DENYING CERTIFICATE OF APPEALABILITY *
                  _________________________________

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
                _________________________________

         Mr. Byron Gay was convicted in Colorado district court. After

unsuccessfully appealing and collaterally challenging the conviction in

state court, Mr. Gay sought habeas relief in federal district court. That

court denied relief, and Mr. Gay wants to appeal. To do so, he requests a

certificate of appealability and leave to proceed in forma pauperis.




*
      Our order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order may be cited for its persuasive value if otherwise appropriate. See
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
                         Certificate of Appealability

      We deny the request for a certificate of appealability.

1.    Mr. Gay is convicted based on a DNA match.

      The conviction grew out of a burglary in Colorado. The homeowners

and two guests returned home, and the burglar fled through a bedroom

window. The police quickly arrived to investigate, and the guests described

the burglar as a white male. The police later tested the DNA samples from

an imprint on a kitchen window and matched the DNA to Mr. Gay, who is

African-American. The trial court convicted Mr. Gay of second-degree

burglary, theft, and criminal mischief.

2.    Mr. Gay is not entitled to a certificate of appealability on the
      claims involving actual innocence, insufficiency of the evidence,
      and unreliability of the evidence.

      In part, Mr. Gay sought habeas relief based on actual innocence,

insufficiency of the evidence, and unreliability of the evidence. The

district court rejected these claims on the merits, and Mr. Gay wants to

appeal these rulings. To do so, he needs a certificate of appealability. See

28 U.S.C. § 2253(c) (requiring a certificate of appealability for an appeal).

We can issue the certificate on these claims only if reasonable jurists

would regard the district court’s rulings as debatable or wrong on the

merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Gay cannot

satisfy this standard.



                                      2
     In our circuit, “actual innocence does not constitute a freestanding

basis for habeas relief.” Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th

Cir. 2019). Thus, no reasonable jurist would regard the district court’s

ruling on Mr. Gay’s claim of actual innocence as debatable or wrong.

     Nor could reasonable jurists debate Mr. Gay’s claim involving

insufficiency of the evidence. For this claim, the underlying test is whether

a rational fact-finder could have found the essential elements of guilt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying this test, we

view the evidence in the light most favorable to the prosecution. Id. And

viewing the DNA evidence favorably to the prosecution, a fact-finder could

reasonably have found guilt.

     Mr. Gay contends that some of the DNA evidence should have been

excluded. But when the petitioner challenges the sufficiency of the

evidence, we consider all of the evidence even if some of it should have

been excluded. McDaniel v. Brown, 558 U.S. 120, 130-31 (2010) (per

curiam). Thus, Mr. Gay’s contention does not render the ruling debatable

or wrong.

     Mr. Gay also disputes the way that the state appellate court

considered the DNA evidence. That court concluded that the defense had

essentially conceded the existence of a DNA match by admitting that

Mr. Gay’s partial DNA profile had been found on the kitchen window.

Mr. Gay argues that the state appellate court should not have relied on

                                      3
defense counsel’s concession. To prevail on habeas relief, however,

Mr. Gay must show that the state appellate court’s rationale was contrary

to or an unreasonable application of clearly established federal law as

determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). And Mr. Gay

has not identified any Supreme Court case law restricting state courts from

deeming defense counsel’s concessions as binding on the client. So no

reasonable jurist would regard this ruling as contrary to, or an

unreasonable application of, Supreme Court precedent. We thus deny a

certificate of appealability on this claim.

3.    Mr. Gay is not entitled to a certificate of appealability on his
      procedurally barred habeas claim involving ineffective assistance
      of counsel.

      In district court, Mr. Gay also claimed that his trial counsel had been

ineffective in failing to hire a DNA expert. The district court deemed this

claim procedurally barred. To obtain a certificate of appealability on this

issue, Mr. Gay must show that the district court’s procedural ruling was at

least reasonably debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Mr. Gay cannot clear this hurdle.

      He brought this claim when appealing the denial of his collateral

challenge in state court. The state appellate court declined to consider the

claim, reasoning that Mr. Gay had to present the claim in state district

court. Given this procedural defect, the federal district court deemed the

claim procedurally barred unless Mr. Gay could show cause and prejudice.

                                       4
Mr. Gay argued that cause and prejudice existed based on a lack of counsel

in state district court. The federal district court rejected this argument, and

we conclude that this ruling is not reasonably debatable.

      Mr. Gay has not presented any evidence that a DNA expert would

have provided favorable testimony. Given the absence of such evidence, we

conclude that Mr. Gay failed to present a reasonably debatable theory of

prejudice. 1 In the absence of prejudice, the claim of ineffective assistance

is clearly procedurally barred. We thus deny a certificate of appealability

on this claim. See Boyle v. McKune, 544 F.3d 1132, 1138 (10th Cir. 2008)

(holding that the petitioner had not shown prejudice from counsel’s failure

to call expert witnesses when the petitioner had not identified helpful

testimony that the witnesses would have provided).

                                     * * *

      Given the absence of a reasonably debatable ruling in district court,

we decline to issue a certificate of appealability. The lack of a certificate

requires us to dismiss the appeal.

                   Leave to Proceed In Forma Pauperis

      Though we dismiss the appeal, we must address Mr. Gay’s motions

for leave to proceed in forma pauperis. See Clark v. Oklahoma, 468 F.3d



1
      Given the absence of prejudice, we need not decide whether Mr. Gay
has shown cause.

                                       5
711, 715 (10th Cir. 2006) (stating that a petitioner remains obligated to

pay the filing fee after denial of a certificate of appealability). To obtain

leave to proceed in forma pauperis, Mr. Gay must show that he

      • lacks the money to prepay the filing fee and

      • brings the appeal in good faith.

28 U.S.C. § 1915(a)(1), (a)(3).

      He satisfies both requirements, for he has no assets and we have no

reason to question Mr. Gay’s good faith even though the rulings are not

reasonably debatable. See Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir.

1997) (per curiam) (stating that the petitioner’s burden for a certificate of

appealability “is considerably higher” than the burden of “good faith” for

leave to proceed in forma pauperis). As a result, we grant leave to proceed

in forma pauperis. See Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir.

2008) (granting leave to proceed in forma pauperis notwithstanding the

denial of a certificate of appealability); Yang v. Archuleta, 525 F.3d 925,

931 & n.10 (10th Cir. 2008) (same).

                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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