                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           August 26, 2011
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 JAMES WILLIAM SARGENT,

           Petitioner-Appellant,

 v.                                                          No. 11-6156
                                                        (D.C. No. 10-cv-01231)
 JAMES RUDEK,
                                                             (W.D. Okla.)
           Respondent-Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, EBEL and GORSUCH, Circuit Judges.


       James Sargent, an Oklahoma prisoner proceeding pro se, seeks a Certificate of

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

petition. We grant Sargent permission to proceed in forma pauperis (IFP) but deny a

COA and dismiss this appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
                                     BACKGROUND

       In the early morning hours of March 19, 2008, Pama Yarbrough left her rural

home to go to work in Drumright, Oklahoma. As she was driving, Yarbrough saw what

she thought was a person jump in front of her car. Fearing that she may have struck a

pedestrian, Yarborough stopped her car, turned on her emergency flashers, and rolled

down her passenger window to listen. At that point, a man opened the passenger door

and attempted to get in the car with a gun in his hand. Yarbrough unbuckled her seatbelt

and rolled onto the road in an attempt to escape. The next thing Yarbrough remembers is

trying to crawl away, knowing that she had been shot.

       Sherry Morgan, happened to be driving on the same road that morning coming

from the opposite direction. Morgan saw Yarbrough’s car and, as she got closer, saw

Yarbrough lying in the street screaming, “Help me. Don’t leave me. Help me.” (Trial

Tr. at 133.) So Morgan stopped to help but a husky, older man, who Morgan described

as about six feet and one or two inches in height, appeared at her window shouting, “Get

out of here. Leave. Get out of here.” (Id.) Morgan started to drive off but in her rear

view mirror she saw the man shoot Yarbrough three times at close range. When she got

to the top of the hill, Morgan called 911.

       Paramedic Charles Vetters arrived to find Yarbrough very pale with no radial or

femoral pulse but still conscious. Yarbrough told Vetters that she had been shot. Vetters

asked if she knew who shot her, to which Yarbrough responded twice that it was Sargent.
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When Yarbrough arrived at the emergency room, another medic asked her if she knew

who shot her. Yarbrough again responded that it was Sargent, though this time she

explained that he was an ex-boyfriend against whom she had a victim’s protective order.

       Apparently, Yarbrough and Sargent had a tumultuous relationship. The two dated

about two years before this incident, from December 2004 until June 2005. Yarbrough

was receiving social security benefits at that time due to a mental disability, and in early

2005, Yarbrough designated Sargent as the payee of those benefits. Yarbrough again

became employed in June 2005, so she assumed the payments stopped then. Later

Yarbrough learned that Sargent had in fact continued to receive checks. So Yarbrough

confronted Sargent and demanded that he pay the money back or she would report the

matter to the Social Security Administration. Sargent acquiesced and signed a piece of

paper saying that he would pay Yarbrough the $6,000 in question from the proceeds from

the sale of his home.

       A few months after that confrontation, Yarbrough received a letter, which had a

poem stating that unless “love bloomed” between Sargent and Yarbrough, “everything

[Yarbrough] love[d would] wither and die.” (Id. at 48.) Over the next few months,

Yarbrough found five of her chickens beheaded and roses that she planted suddenly dead

as if sprayed with chemicals. Yarbrough returned home from church one day to find

Sargent in her home. When she tried to get away, Sargent followed her, brandishing a

gun and threatening to shoot her. The following day, Yarbrough received a victim’s

protective order.
                                              3
       When the victim’s protective order was issued against him, Sargent lost his job

because both he and Yarbrough worked at the same place. Sometime after that, Sargent

called an old co-worker and asked how everyone would feel about him returning to work.

The co-worker explained that the victim’s protective order prevented Sargent from going

back to work, and Sargent responded that the victim’s protective order was “no big deal”

and that “something bad was going to happen.” (Id. at 141.)

       Based on this shooting, Sargent was convicted in an Oklahoma state court of

shooting with intent to kill, unauthorized use of an automobile, stalking, and violating a

protective order, then sentenced to twenty-seven years’ imprisonment. Sargent appealed

to the Oklahoma Court of Criminal Appeals, which affirmed his conviction and sentence.

Sargent then filed for post-conviction relief in the state district court, which denied relief.

That denial of post-conviction relief was upheld on appeal to the Oklahoma Court of

Criminal Appeals. So Sargent proceeded to filed a habeas petition under 28 U.S.C.

§ 2254 in federal district court.

       In his federal habeas petition, Sargent argued that there was insufficient evidence

to uphold his conviction, that his sentence was excessive, and that he was denied

effective assistance of counsel at trial and at appeal. The magistrate judge to whom the

matter had been referred recommended denying habeas relief, and the district court

eventually adopted that recommendation. Sargent now seeks a COA from this Court to

appeal the dismissal of his habeas petition.


                                               4
                                        ANALYSIS

       A federal circuit court does not have appellate jurisdiction to consider the merits

of a § 2254 habeas petition until a COA is issued. 28 U.S.C. § 2253(c)(1)(A). A COA

may only be issued if the petitioner makes a “substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). To satisfy this burden, a petitioner must

demonstrate 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) (internal quotation marks omitted). Although a petitioner seeking a

COA does not bear the burden of proving that his habeas petition will succeed on the

merits, he “must prove something more than the absence of frivolity or the existence of

mere good faith.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (internal quotation

marks omitted). Additionally, although we construe pro se applications for a COA

liberally, Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), a petitioner’s pro se status

does not relieve him of his burden to make a substantial showing of a constitutional

violation.

       Sargent fails to carry his burden in this case. While Sargent made a number of

arguments before the district court, in his application for a COA to this Court, Sargent

claims only one constitution violation: insufficient evidence. Sargent argues that

Yarbrough’s testimony should have been disregarded because of her mental illness.

Further, Sargent argues that there are inconsistences in Yarbrough’s timeline of events.
                                              5
       “Evidence of guilt is sufficient if after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Diestel v. Hines, 506 F.3d 1249, 1267

(10th Cir. 2007) (internal quotation marks omitted). After reviewing the evidence, the

federal magistrate judge concluded that “the decision of the Oklahoma Court of Criminal

Appeals is neither contrary to nor an unreasonable application” this standard, and we

cannot disagree. Yarbrough’s testimony about the shooting was sufficient with the other

corroborating evidence to support Sargent’s conviction. While Yarbrough admittedly

suffers from a mental illness, she testified about her illness candidly and was cross-

examined about it. It was for the trier of fact to resolve any dispute about her credibility

based on her mental illness. Given the deference owed under AEDPA to the Oklahoma

Court of Criminal Appeals’ ruling, no reasonable jurist could debate that the district

court’s decision on this issue was correct. Thus, we deny Sargent’s application for a

COA and dismiss this appeal.

                                      CONCLUSION

       For the foregoing reasons, we GRANT IFP status but DENY Sargent’s application

for a COA and DISMISS this appeal.

                                           ENTERED FOR THE COURT



                                           David M. Ebel
                                           Circuit Judge

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