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

                               FOR THE TENTH CIRCUIT                           July 10, 2020
                           _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 WILLIAM STEFVON HURT,

          Petitioner - Appellant,

 v.                                                           No. 20-5009
                                                   (D.C. No. 4:17-CV-00005-JED-JFJ)
 JANET DOWLING, Warden,                                       (N.D. Okla.)

          Respondent - Appellee.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY*
                      _________________________________

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

      William Hurt, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254

petition. For the reasons discussed below, we deny Hurt’s request and dismiss this

matter.

      Oklahoma charged Hurt with first-degree murder. Prior to trial, Hurt

unsuccessfully moved to sever his trial from his codefendant’s. At trial, two

eyewitnesses testified that on May 16, 2010, the victim received harassing phone


      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         We liberally construe Hurt’s pro se filings. But we will not act as his
advocate or excuse his failure to follow procedural rules. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
calls from Hurt’s codefendant, Hurt and his codefendant drove a white Ford Taurus

into a park, the codefendant and the victim fought, and Hurt shot the victim. The

prosecutor presented cellphone data demonstrating that earlier that day, the victim

received calls from a phone belonging to the codefendant’s aunt. As part of his

defense, some of Hurt’s family members testified that although they previously

owned a white Ford Taurus, they sold it before May 2010. A jury convicted Hurt of

first-degree murder, and the trial court imposed a life sentence.

      Hurt appealed to the Oklahoma Court of Criminal Appeals (OCCA). As

relevant here, he argued to the OCCA that his counsel was ineffective by failing to

investigate and present evidence regarding the sale of the car.2 Brief of Appellant at

29–32, Hurt v. Oklahoma, No. F-2011-1057 (Okla. Crim. App. May 17, 2013). In

particular, Hurt argued that his trial counsel was ineffective by not calling the notary

who notarized the car’s bill of sale, claiming that she would have testified that she

notarized it before May 2010. Id. at 31–32. Hurt also argued that the trial court erred

by admitting speculative opinion testimony regarding the cellphone data. The OCCA

affirmed the conviction and sentence.

      In February 2017, Hurt filed a petition for habeas relief in federal district

court. Hurt’s petition reasserted these two claims he made before the OCCA.3 After



      2
         We take judicial notice of the OCCA records. See Gee v. Pacheco, 627 F.3d
1178, 1191 (10th Cir. 2010).
       3
         Hurt also raised an insufficient-evidence claim and a prosecutorial-
misconduct claim. The district court dismissed these claims, but because Hurt does
not argue that the dismissal was improper, we do not consider the district court’s
                                           2
tolling the statute of limitations and finding the petition timely, the district court

denied the petition and declined to issue a COA. Regarding Hurt’s ineffective-

assistance-of-counsel (IAC) claim, the district court determined that Hurt’s trial

counsel’s decision to not call the notary was neither deficient nor prejudicial because

“the notary’s affidavit reflect[ed] that she ha[d] no independent recollection of the

sale in question” and Hurt’s trial counsel “thoroughly developed the sale theory”

through his family members’ testimony. Id. at 20; see Strickland v. Washington, 466

U.S. 668, 687 (1984) (explaining that, to prevail on IAC claim, defendant must show

counsel’s performance was deficient and prejudicial). In other words, the district

court reasoned that even if Hurt’s counsel had called the notary, her testimony would

not have affected the outcome and that therefore any error was not prejudicial. Thus,

the district court determined that the OCCA’s rejection of Hurt’s IAC claim was not

contrary to federal law, and it denied relief on this ground.

       On the inadmissible-evidence claim, the district court first noted that federal

courts do not grant habeas relief solely to correct state-law errors regarding “the

admissibility of evidence.” R. vol 4, 16–17 (quoting Moore v. Marr, 254 F.3d 1235,

1246 (10th Cir. 2001)). Instead, the district court explained, a federal court will grant

such relief only if the petitioner demonstrates either “that the admission of the

evidence violated a specific constitutional guarantee” or “that it fatally infected the

trial and denied the fundamental fairness that is the essence of due process.” Id. at 17


disposition of them. See Phillips v. Humble, 587 F.3d 1267, 1274 (10th Cir. 2009)
(declining to consider argument not made on appeal).
                                             3
(quoting Wilson v. Sirmons, 536 F.3d 1064, 1101 (10th Cir. 2008)). Reasoning that

the cellphone data was (1) relevant because it corroborated the eyewitnesses’

testimony and (2) met evidentiary standards because it was based on known

technology, the court concluded that admission of the evidence did not result in

“fundamental unfairness.” Id.; see also Wilson, 536 F.3d at 1101. It therefore denied

relief on this ground.

      Hurt now seeks to appeal the district court’s denial of his petition regarding his

IAC and inadmissible-evidence claims. But before he can appeal, he must obtain a

COA. 28 U.S.C. § 2253(c)(1)(A). As the district court reached the merits of Hurt’s

constitutional claims, we may grant a COA only if Hurt “demonstrate[s] that

reasonable jurists would find the district court’s assessment of [his] constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

district court could have granted relief only if the OCCA’s decision was contrary to

clearly established federal law or based on “an unreasonable determination of the

facts.” § 2254(d). Thus, we may grant a COA only if Hurt shows that reasonable

jurists could debate the district court’s determination that the OCCA decision was not

contrary to federal law or based on an unreasonable determination of fact. See id.;

Slack, 529 U.S. at 484.

      In attempting to do so, Hurt contends that his trial counsel was ineffective by

failing to investigate and present evidence regarding the sale of the car.4 To prevail


      4
        Hurt also asserts that his appellate counsel on direct appeal provided him
with ineffective assistance. But all of Hurt’s IAC arguments relate to his trial
                                           4
on an IAC claim, a defendant must show that his counsel’s performance was both

deficient and prejudicial. Strickland, 466 U.S. at 687. Hurt argued to the OCCA that

his trial counsel should have interviewed the notary and called her to testify. See

Brief of Appellant at 30–32, Hurt, No. F-2011-1057. But the OCCA rejected this

argument because the notary’s affidavit indicated that she did not remember

notarizing the bill of sale. See Hurt, No. F-2011-1057, slip op. 4. Therefore, Hurt’s

trial counsel’s performance was not prejudicial under federal law because any

objection Hurt’s counsel could have made regarding the sale of the car would not

have impacted the outcome of the proceedings. See Strickland, 466 U.S. at 694

(explaining that to show prejudice, “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different”). Because the OCCA’s rejection of Hurt’s IAC claims

was not contrary to federal law or based on an unreasonable determination of fact,

reasonable jurists could not debate the district court’s rejection of these claims.

§ 2254(d); Slack, 529 U.S. at 484.

      Hurt next argues that the trial court erred by admitting evidence related to the

cellphone data. Specifically, he argues that the evidence was relevant only to his

codefendant and not to him. But in his habeas petition before the district court, Hurt

argued that the trial court erred in admitting this data because it was speculative

testimony. Because Hurt failed to assert in his petition that the evidence was


counsel. We therefore do not consider this undeveloped assertion. See Vreeland v.
Zupan, 906 F.3d 866, 881 n.4 (10th Cir. 2018), cert. denied, 139 S. Ct. 1586 (2019).
                                            5
inadmissible because it was relevant only to his codefendant, Hurt has waived this

inadmissible-evidence argument. See Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir.

2005). And because Hurt did not reassert his nonwaived argument to us, we decline

to consider it.5 See Phillips, 587 F.3d at 1274.

      Because Hurt’s argument in support of his IAC claim regarding the car’s sale

fails and because Hurt waived all other arguments by not including them in his

habeas petition, we deny his request for a COA and dismiss this matter.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      5
        Hurt waived two additional IAC claims that he makes to us but failed to
include in his habeas petition: that his trial counsel was ineffective for failing to
object to the cellphone data and for failing to renew his motion to sever the trial.

                                            6
