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

                            FOR THE TENTH CIRCUIT                          August 16, 2017
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
SAMUEL ARP,

      Petitioner - Appellant,

v.                                                          No. 17-5063
                                               (D.C. No. 4:14-CV-00328-CVE-TLW)
TRACY MCCOLLUM, Warden,                                     (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

           ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

      Samuel Arp, a prisoner of Oklahoma proceeding pro se,1 seeks to appeal from

the district court’s denial of his federal habeas application under 28 U.S.C. § 2254.

Exercising jurisdiction under 28 U.S.C. § 1291, we deny his requests to issue

certificates of appealability (“COAs”) on seven issues and dismiss this matter.

      Mr. Arp’s central argument is that the district court, in denying his habeas

application, failed to address three claims he included in his application. We



       * This order is not binding precedent, except under the doctrines of law of the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.
      1
        Because Mr. Arp appears pro se, we construe his filings liberally, see Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or
otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
conclude that, even if Mr. Arp properly presented these claims to the district court

(which we do not decide), he is not entitled to COAs on any of these claims. Further,

Mr. Arp is not entitled to a COA on the four claims the district court did address.

                           I. PROCEDURAL HISTORY

      To explain Mr. Arp’s argument before us, we recount the state and federal

proceedings in his case.

1. State Proceedings

      a. Trial

      After Mr. Arp stabbed his girlfriend in 2011, an Oklahoma jury convicted him

of (1) Assault and Battery with a Dangerous Weapon After Two or More Felony

Convictions and (2) Obstructing an Officer. See Okla. Stat. Ann. tit. 21 §§ 645, 540.

He received a prison sentence of 60 years on the first count and 30 days on the

second count.

      b. Direct Appeal

      On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed. See Arp v. State, No. F-2011-971 (Okla. Crim. App. Feb. 20, 2013)

(unpublished). Mr. Arp raised three state law evidentiary issues on appeal, arguing

that: (1) the State’s expert witness had given wide-ranging testimony about abused

women when there was no evidence of ongoing domestic abuse between Mr. Arp and

his girlfriend; (2) Mr. Arp’s girlfriend, whom the State called to rebut Mr. Arp’s self-

defense claim, had testified about Mr. Arp’s uncharged misconduct; and (3) the State,



                                           2
in proving that Mr. Arp had prior felony convictions, had improperly revealed to the

jury that he had a murder conviction.

      The OCCA rejected these claims. First, it ruled the trial court had not abused

its discretion in admitting the domestic violence expert testimony because there was

evidence of domestic abuse. Second, the OCCA determined Mr. Arp had not

objected to his girlfriend’s testimony on rebuttal and therefore reviewed for plain

error. It concluded he had not shown error, plain or otherwise, because her

testimony, including testimony regarding prior acts of violence, was relevant to rebut

his self-defense claim. Third, the OCCA ruled the trial court’s failure to redact

information from Mr. Arp’s prior convictions was not an abuse of discretion and that

it had not caused the jury to assess an excessive sentence.

      c. Post-conviction proceedings

      Mr. Arp next filed an application for state post-conviction relief. He raised

two claims: (1) his appellate lawyer had been constitutionally ineffective on direct

appeal by leaving out various claims regarding trial counsel’s ineffectiveness;2 and

(2) he was factually innocent. Although Mr. Arp styled his second claim as one of

“factual innocence,” the substance of his claim, he explained, was that his trial

counsel had failed to present evidence that his girlfriend was under the influence of




      2
        Mr. Arp asserted his appellate counsel had been ineffective for failing to
raise four alleged errors of trial counsel: (1) failure to call Mr. Arp and other
(unnamed) exculpatory witnesses, (2) failure to investigate the case, (3) failure to
object to rebuttal witness testimony, and (4) failure to adequately prepare for trial.
                                            3
drugs when he stabbed her and that this information could have bolstered his self-

defense claim.

      The state district court denied his post-conviction application. On the first

claim, it ruled that not one of his underlying trial counsel ineffectiveness theories was

meritorious and thus denied his appellate-ineffectiveness claim. On the second

claim—that Mr. Arp was factually innocent because his trial counsel had been

ineffective in failing to present self-defense evidence—the district court denied the

claim as waived because it could have been, but was not, presented on direct appeal.

      Mr. Arp appealed the denial of his post-conviction application. The OCCA

affirmed. See Arp v. State, No. PC-2013-1097 (Okla. Crim. App. Feb. 20, 2014)

(unpublished). In evaluating Mr. Arp’s ineffectiveness claim under Strickland v.

Washington, 466 U.S. 668 (1984), the OCCA ruled Mr. Arp had failed to show that

his appellate counsel had performed deficiently or that Mr. Arp had been prejudiced.

The OCCA agreed with the state district court that Mr. Arp had procedurally

defaulted his second claim by not presenting it on direct appeal.

2. Federal Proceedings

      Mr. Arp next filed an application for federal habeas relief in the U.S. District

Court for the Northern District of Oklahoma under 28 U.S.C. § 2254. The district

court understood Mr. Arp to raise four grounds for relief (grounds three and four

appear to overlap): (1) ineffective assistance of appellate counsel; (2) insufficient

evidence; (3) the Oklahoma courts’ refusal to decide his factual innocence claim

based on a state law procedural bar violated due process; and (4) the Oklahoma

                                           4
courts’ failure to apply Supreme Court law and address the merits of Mr. Arp’s

procedurally barred claim also violated due process. See Arp v. McCollum, No. 14-

CV-0328-CVE-tlw, 2017 WL 1708027, at *2 (N.D. Okla. May 2, 2017)

(unpublished). The district court denied relief.

      On ground one, the court applied the standard of review prescribed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) because the OCCA had

adjudicated Mr. Arp’s appellate ineffectiveness claim on its merits. See Arp, 2017

WL 1708027, at *2-6; see also 28 U.S.C. § 2254(d). It concluded this ground failed

under AEDPA because the OCCA’s resolution of Mr. Arp’s claim was neither

contrary to, nor an unreasonable application of, clearly established Supreme Court

precedent. See id. at *4-6; see also 28 U.S.C. § 2254(d)(1).

      On ground two, the district court noted the OCCA’s enforcement of a state

procedural bar against Mr. Arp’s factual innocence/evidence sufficiency claim. See

Arp, 2017 WL 1708027, at *7. The court concluded this bar against claims that could

have been, but were not, raised on direct appeal was an adequate and independent

state law ground for the denial of relief. Id. Mr. Arp was thus not entitled to federal

relief on this claim. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012)

(explaining that federal habeas relief is barred when a state prisoner “defaulted his

federal claims in state court pursuant to an independent and adequate state procedural




                                           5
rule,” absent a showing of cause and prejudice for the default or a showing of a

fundamental miscarriage of justice (quotations omitted)).3

      On grounds three and four, the district court concluded no relief was available.

See Arp, 2017 WL 1708027, at *9. These grounds challenged the state courts’

reliance on a procedural bar as violating due process. But the district court explained

that “challenges to state postconviction procedures do not rise to the level of federal

constitutional claims cognizable on habeas corpus review.” Id. (citing Phillips v.

Ferguson, 182 F.3d 769, 773-74 (10th Cir. 1999); Sellers v. Ward, 135 F.3d 1333,

1339 (10th Cir. 1998); and Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993)

(stating due process challenge to Oklahoma post-conviction procedures not

“cognizable in a federal habeas proceeding”)).

      Having rejected all four grounds, the district court denied relief and entered

judgment.4 Mr. Arp filed a timely notice of appeal.




      3
         The district court also rejected Mr. Arp’s arguments that he could circumvent
the procedural bar. First, he did not qualify for the “fundamental miscarriage of
justice exception.” See Arp, 2017 WL 1708027, at *7-8 (explaining that Mr. Arp
challenged only the legal sufficiency of the evidence supporting his conviction and
that “‘actual innocence’ refers to factual innocence and not mere legal sufficiency”).
Second, it rejected his argument that the sufficiency claim had been defaulted
because of his appellate counsel’s ineffectiveness. See id. at *8 (concluding that,
because the trial record revealed sufficient evidence of Mr. Arp’s guilt, appellate
counsel’s failure to raise a sufficiency challenge on direct appeal did not affect the
result of his direct appeal).
      4
        The district court declined to issue Mr. Arp a COA on any of the four
grounds. See Arp, 2017 WL 1708027, at *10. By separate order, it granted Mr.
Arp’s request to proceed with this appeal in forma pauperis.
                                           6
                            II. LEGAL BACKGROUND

      “A state prisoner whose petition for a writ of habeas corpus is denied by a

federal district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137

S. Ct. 759, 773 (2017). Before we may exercise jurisdiction over Mr. Arp’s appeal,

he must obtain COAs for the issues he wishes to raise. See 28 U.S.C.

§ 2253(c)(1)(A), (c)(3). A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). “At the

COA stage, the only question is whether the applicant has shown that ‘jurists of

reason could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.’” Buck, 137 S. Ct. at 773 (quoting Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003)).

                                  III. DISCUSSION

      Mr. Arp has filed a combined opening brief and request for COAs. He asserts

seven claims for relief—the four claims the district adjudicated and three more that

he asserts it overlooked. We address Mr. Arp’s claims in two sets: (1) the three

claims the district court did not address and (2) the other four claims it rejected. We

conclude Mr. Arp is not entitled to a COA on any of his claims.




                                           7
1. The Three Direct Appeal Claims

      Mr. Arp explains that he intended to include in his § 2254 application the three

claims he presented to the OCCA on direct appeal:

      1.     The trial court erred in admitting testimony from the domestic
             violence expert;

      2.     The trial court erred in admitting testimony from Mr. Arp’s
             girlfriend about his uncharged misconduct; and

      3.     The State wrongly informed the jury that he had previously
             been convicted of murder and used that information to argue for a
             more severe sentence.

      He included the three direct appeal claims in a section of his habeas

application addressing the procedural history of this case. On the next page, the

habeas form directs applicants as follows: “For this petition, state every ground on

which you claim that you are being held in violation of the Constitution, laws, or

treaties of the United States.” ROA at 7, ¶ 12 (emphases added). Following this

instruction, Mr. Arp presented the four grounds (labeled “GROUND I, GROUND II,”

etc.) that the district court later considered and rejected. His three direct appeal

claims were not included.

      Mr. Arp now requests that we grant COAs and remand so the district court can

address the three claims he says he intended to raise all along. Citing his status as a

pro se litigant, the absence of trained law clerks within the Oklahoma Department of

Corrections to assist prisoners with their filings, his good faith, and the prospect that

he will serve a 60 year sentence at age 55, Mr. Arp asks us to overlook his error in



                                            8
not including the direct appeal claims in the appropriate section of his habeas

application.

      Even if we could overlook his technical error, we cannot grant Mr. Arp COAs

on any of his three claims because he has not “made a substantial showing of the

denial of a constitutional right” as required under 28 U.S.C. § 2253(c)(2) (emphasis

added). His direct appeal claims all raised state law evidentiary issues. They do not

implicate federal law and thus cannot serve as a basis for federal habeas relief. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining “federal habeas corpus

relief does not lie for errors of state law” (quotations omitted)); Hooks v. Workman,

689 F.3d 1148, 1180 (10th Cir. 2012) (explaining federal habeas courts “sit only to

vindicate an applicant’s constitutional rights” and that “federal habeas review is not

available to correct state law evidentiary errors” (brackets and quotations omitted)).

      Although a state prisoner may seek federal habeas relief “if a state law

decision is so fundamentally unfair that it implicates federal due process,”

Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017), Mr. Arp has not

argued that his direct appeal claims are anything other than matters of state law. He

argued them as state law issues on direct appeal; he described them the same way in

his federal habeas application; and now, in his application for COAs, he argues the

direct appeal claims in state law terms. Because “[f]ederal habeas relief is not

available to correct state law errors,” id., we decline to grant a COA on any of Mr.

Arp’s direct appeal claims or to remand them. See United States v. Thomas, 33 F.



                                           9
App’x 446, 448 (10th Cir. 2002) (unpublished)5 (explaining that, where “[t]he district

court did not address petitioner’s remaining claims,” the “oversight [did] not entitle

petitioner to a COA . . . because even had the district court addressed these claims,

the result would not have been different”); cf. United States v. Leopard, 170 F.3d

1013, 1017-18 (10th Cir. 1999) (granting COA and remanding when district court

failed to address defendant’s motion to amend for inclusion of a claim that was an

“evident winner” and that “[a]t the very least . . . raise[d] a substantial question”).

       Mr. Arp has not shown that reasonable “jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El, 537

U.S. at 327. We deny his COA requests on these three claims.

2. The Four Claims Resolved by the District Court

       Mr. Arp’s combined brief and application for COAs states he “also take[s]

issue on the remaining four (4) post-conviction grounds” the district court resolved

against him. Aplt. Br. at 16. But his COA arguments are directed at the three direct

appeal claims, discussed above, not the four claims the district court considered and

rejected. Regardless, we conclude Mr. Arp is not entitled to a COA on any of the

four claims because reasonable jurists could not “debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner.” Miller-El,

537 U.S. at 336 (quotations omitted).




       5
        We cite unpublished cases in this order only for their persuasive value. See
Fed. R. App. P. 32.1, 10th Cir. R. 32.1.
                                            10
      On the first ground (appellate counsel ineffectiveness), the district court

denied relief under AEDPA. See Arp, 2017 WL 1708027, at *2-6; see also 28 U.S.C.

§ 2254(d). In determining whether to issue a COA, “[w]e look to the [d]istrict

[c]ourt’s application of AEDPA to [Mr. Arp’s] constitutional claims and ask whether

that resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336

(emphasis added); see Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004)

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

our consideration of a habeas petitioner’s request for COA.”); see also Harrington v.

Richter, 562 U.S. 86, 101 (2011) (explaining that, when state court rejected

applicant’s claim under Strickland, federal habeas relief is unavailable “so long as

fairminded jurists could disagree on the correctness of the state court’s decision”

(quotations omitted)). For substantially the same reasons given in the district court’s

order, we conclude its determination that Mr. Arp’s ineffectiveness claim does not

give rise to federal habeas relief under AEDPA is not debatable among jurists of

reason. See Arp, 2017 WL 1708027, at *4-6. Because the correctness of the district

court’s decision under AEDPA is not subject to reasonable debate, Mr. Arp is not

entitled to a COA on this ground.

      Similarly, the district court’s conclusion that an independent and adequate

state procedural rule barred his second ground—regarding the sufficiency of the

evidence/his factual innocence—is not subject to debate among jurists of reason. See

Arp, 2017 WL 1708027, at *7-9. When, as happened on Mr. Arp’s second ground, a

“district court denies a habeas petition on procedural grounds,” the prisoner cannot

                                          11
obtain a COA without showing “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

Mr. Arp has not made either showing, and we therefore decline to issue a COA on his

second ground.

       The district court rejected Mr. Arp’s third and fourth grounds as “not ris[ing]

to the level of federal constitutional claims cognizable on habeas corpus review”

because they challenged Oklahoma’s procedural rules regarding post-conviction

applications, as opposed to trial errors in his case. Arp, 2017 WL 1708027, at *9.

Under our precedent, reasonable jurists could not debate the correctness of the

district court’s decision to deny relief. See Phillips, 182 F.3d at 772 (“The federal

courts on habeas review cannot strike down as unconstitutional a state post-

conviction procedural rule.”); see also Sellers, 135 F.3d at 1339. As we have done in

other cases raising similar challenges, see, e.g., Wallin v. Miller, 661 F. App’x 526,

534-35 (10th Cir. 2016) (unpublished); Walton v. Falk, 577 F. App’x 893, 894 (10th

Cir. 2014) (unpublished), we decline to issue a COA on either of these grounds.




                                            12
                        IV. CONCLUSION

We deny Mr. Arp’s COA requests and dismiss this matter.



                                  Entered for the Court


                                  Scott M. Matheson, Jr.
                                  Circuit Judge




                                 13
