                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                May 30, 2019
                                      TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                                Clerk of Court


 TAMMY AURORA MANN,
                Petitioner–Appellant,
 v.                                                               No. 18-6193
                                                         (D.C. No. 5:18–CV–00367–HE)
 DEBBIE ALDRIDGE, Warden, Mabel                                   (W.D. Okla.)
 Basset Correctional Center,
                Respondent–Appellee.


             ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.


       Petitioner Tammy Aurora Mann, an Oklahoma state prisoner represented by

retained counsel, seeks a certificate of appealability to appeal the district court’s dismissal

of her 28 U.S.C. § 2254 habeas corpus petition.

       Petitioner was convicted by an Oklahoma jury of first-degree manslaughter in

connection with a fatal traffic accident, and she was sentenced to twenty years of

imprisonment. Her direct appeal and state post-conviction action were both unsuccessful.

Petitioner then filed the instant petition for federal habeas relief, in which she argued that

she received ineffective assistance of counsel relating to (1) her sleep-apnea defense, and

       *
          This order is not binding precedent except under the doctrines of law of the case, res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.
(2) the government’s evidence of impairment. A magistrate judge analyzed Petitioner’s

claims in a sixteen-page report and recommendation and concluded that she had failed to

establish a basis for relief under the deferential standards of 28 U.S.C. § 2254(d). The

district court subsequently entered a three-page order stating that the court had conducted

a de novo review and agreed that Petitioner had not shown a sufficient basis for habeas

relief. The court accordingly adopted the magistrate judge’s report and recommendation

and denied the habeas petition.

       In her application for a certificate of appealability, Petitioner first contends that

“the District Court’s ‘de novo’ review is insufficient to constitute a de novo review where

there is no analysis of Petitioner’s objections.” (Appellant’s Br. at 1.) On the merits, she

argues that the district court erred in deferring to the state court’s determination that she

had not shown ineffective assistance of counsel under Strickland v. Washington, 466 U.S.

668, 684–85 (1984). She argues that the state court unreasonably applied the Supreme

Court’s standards for assessing harmless error as set forth in Chapman v. California, 386

U.S. 18, 24 (1967), in determining that she had not shown prejudice resulting from

counsel’s alleged ineffectiveness. She further argues that the evidence introduced by the

government violated Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999), and the Federal Rules of Evidence.

       None of these arguments hold any persuasive force. First, we “presume the district

court knew” of its responsibility to conduct a de novo review of the record, “so the

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express references to de novo review in its order must be taken to mean it properly

considered the pertinent portions of the record, absent some clear indication otherwise.”

Bratcher v. Bray-Doyle Indep. Sch. Dist., 8 F.3d 722, 724 (10th Cir. 1993). We have

specifically rejected the argument that the brevity of a “three-page order indicates the

exercise of less than de novo review”: “[S]uch brevity does not warrant ‘look[ing] behind

a district court’s express statement that it engaged in a de novo review of the record.’” Id.

(quoting Andrews v. Deland, 943 F.2d 1162, 1171 (10th Cir. 1991)) (alteration in

original).

       Second, the district court appropriately deferred to the state court’s determination

that counsel’s alleged errors did not warrant relief under Strickland. A federal court “may

‘issue the writ’ only when the petitioner shows ‘there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents.’” Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014) (quoting Harrington

v. Richter, 562 U.S. 86, 102 (2011)) (alternations in original). “‘The more general the

rule’—like the one adopted in Strickland—‘the more leeway [state] courts have in

reaching outcomes in case-by-case determinations.’” Id. (quoting Richter, 562 U.S. at

101) (alterations in original).

       Third, Petitioner has confused the standard for determining whether a defendant

has shown prejudice under Strickland with the distinct standard for determining whether a

constitutional error is harmless under Chapman. The state court never conducted a

harmless error review of her claims, nor was it required to do so where it had not found a

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constitutional error to begin with. The state court appropriately applied the deferential

Strickland standard, under which a petitioner “must demonstrate a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Richter, 562 U.S. at 104 (internal quotation marks omitted).

       Finally, Daubert and the other federal evidentiary cases cited by Petitioner are not

relevant in this § 2254 habeas action. See Wilson v. Sirmons, 536 F.3d 1064, 1101–02

(10th Cir. 2008). These cases do not set forth constitutional guidelines, but simply

interpret and apply the Federal Rules of Evidence, which govern federal trials, not state

trials like Petitioner’s. See id. The “only relevant question” for a federal habeas court to

ask regarding a state court’s admission of evidence is whether the admitted evidence

“rendered the trial fundamentally unfair.” Id. at 1102. We are not persuaded that

Petitioner has shown such fundamental unfairness here.

        We have thoroughly reviewed the appellate record, Petitioner’s arguments, and

the pertinent cases, and we see no basis for federal habeas relief under the deferential 28

U.S.C. § 2254(d) standard. We accordingly DENY Petitioner’s request for a certificate

of appealability and DISMISS the appeal.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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