                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 29, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 DANA L. GRAHAM SMITH,

          Petitioner - Appellant,
                                                         No. 13-8037
 v.                                            (D.C. No. 2:12-CV-00114-SWS)
                                                          (D. Wyo.)
 PHIL MEYER, Warden, Wyoming
 Department of Corrections Women’s
 Center,

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Petitioner Dana Graham Smith seeks a certificate of appealability (“COA”)

to appeal the district court’s denial of her petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Graham Smith v. Meyer, 12-CV-114-SWS (D.

Wyo. Mar. 8, 2013) (Aplt. Br. Attach.). We deny her request and dismiss the

appeal.

       In June 2009, state law enforcement sent a confidential informant wearing

a wire to Ms. Graham Smith’s home to purchase methamphetamine. Graham v.

State, 247 P.3d 872, 873–74 (Wyo. 2011). She was subsequently charged with

delivery of methamphetamine (second or subsequent offense) in violation of Wyo.
Stat. Ann. §§ 35-7-1031(a)(I) and 35-7-1038. Id. at 873. Bobby Roberts was also

present in Ms. Graham Smith’s house during the buy, and she attempted to call

him to testify on her behalf at trial. Id. at 874. The prosecution objected, raising

concerns about Mr. Roberts’s Fifth Amendment rights. Aplt. App. 149–50.

When the court asked him, after giving a Miranda warning, whether he wished to

proceed to testify, he stated, “I—I guess. I mean, I—I don’t know what’s—it’s

just—it’s—I’m kind of confused what’s going on here.” Id. at 151. After the

court further explained his options, Mr. Roberts concluded “I would like to have

an attorney, speak with an attorney, if I could.” Id. at 152. He then met with a

public defender, and after lengthy colloquy with the attorneys regarding whether

Mr. Roberts planned on invoking his Fifth Amendment right against self-

incrimination, the court did not permit him to testify. See Graham, 247 P.3d at

874. Thereafter, Ms. Graham Smith was convicted, and the Supreme Court of

Wyoming affirmed. Graham, 247 P.3d at 873. In particular, it found that Mr.

Roberts “decided not to testify after consultation with his attorney,” and that the

trial court’s exclusion of this testimony did not violate Ms. Graham Smith’s

rights. Id. at 876.

      In her federal habeas petition, Ms. Graham Smith specifically took issue

with two of the Wyoming Supreme Court’s determinations. Aplt. App. 17. Ms.

Graham Smith argued (1) the finding that Mr. Roberts decided not to testify was

based on an unreasonable determination of the facts, and (2) the denial of relief

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based upon the exclusion of Mr. Roberts’s testimony (in violation of the Sixth and

Fourteenth Amendments) was contrary to federal law. Id. at 17–18. The district

court denied the petition. Graham Smith, 12-CV-114-SWS at 20–21. It held that

the state court resolution of these claims was not “contrary to, or [did not]

involve[] an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” nor were they “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); see Graham Smith, 12-CV-

114-SWS at 20.

      In order for this court to grant a COA, Ms. Graham Smith must make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), such 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) (quotation omitted).

Where, as here, the district court rejected Ms. Graham Smith’s constitutional

claims on the merits, she must demonstrate that “reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Id.

      Neither of Ms. Graham Smith’s arguments meet these standards. First,

factual determinations of the state court are presumed correct, and Ms. Graham

Smith has the burden of rebutting the presumption of correctness by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1). The district court concluded she

failed to do so, and this conclusion is not reasonably debatable. Ms. Graham

Smith argues that Mr. Roberts’s lawyer indicated that Mr. Roberts would prefer

not to testify but recognized that he was a subpoenaed witness and could be

forced to do so. Aplt. Br. 21–25. But she makes no showing that the Wyoming

Supreme Court’s conclusion that Mr. Roberts “decided not to testify after

consultation with his attorney” is factually incorrect. See Graham, 247 P.3d at

876. Ms. Graham Smith places great emphasis on the facts that (1) Mr. Roberts

first said he would testify and (2) the court and counsel had a discussion

exploring what his testimony might be. Aplt. Br. 22–24. But these facts in no

way undercut the finding that Mr. Roberts did consult with an attorney and the

attorney expressed great trepidation whether Mr. Roberts could testify without

invoking the Fifth Amendment. In fact, Mr. Roberts’s lawyer’s final indication to

the court was that “he’s going to have to take the Fifth.” Aplt. App. 162.

      Second, Ms. Graham Smith correctly argues that she has a clearly

established right to present witnesses to establish a defense. Aplt. Br. 25–29

(citing, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas,

388 U.S. 14 (1967)). She contends that the state trial court did not make a

decision based upon actual questions that might be asked of Mr. Roberts or weigh

the interests involved. Id. at 31. Rather, she argues, the court simply succumbed

to the fears of the prosecutor that Mr. Roberts would claim the privilege. Id. at

                                        -4-
34. As the district court concluded, however, a defendant does not have the right

to call a witness knowing that the witness will assert his Fifth Amendment

privilege against self-incrimination. Graham Smith, 12-CV-11-SWS at 15 (citing

United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983)). The decision to

allow such a witness to testify is in the discretion of the trial court. Id. at 15–16

(citing United States v. Hart, 729 F.2d 662, 670 (10th Cir. 1984); United States v.

Kerr, 711 F.2d 149, 152 (10th Cir. 1983)). Again, Ms. Graham Smith failed to

convince us the district court’s conclusion is reasonably debatable. Although she

argues that any invocation of the Fifth Amendment privilege would have been

limited, that is belied by the colloquy, and the state trial court’s legal ruling,

upheld by the appellate court, was a permissible exercise of discretion. Thus, she

has pointed to no clearly established federal law, as established by the Supreme

Court, to show her claims deserve encouragement to proceed any further. See

Slack, 529 U.S. at 484.

      Accordingly, we DENY a COA and DISMISS the appeal.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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