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

                                    TENTH CIRCUIT                             April 28, 2016

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 PAUL MOREHEAD,

        Petitioner - Appellant,                               No. 15-1481
                                                     (D.C. No. 1:14-CV-02920-PAB)
 v.                                                             (D. Colo.)

 THE DOUGLAS COUNTY,
 COLORADO, COUNTY COURT;
 CYNTHIA H. COFFMAN, Attorney
 General, State of Colorado,

        Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.


       Paul Morehead, a Colorado state prisoner, seeks a certificate of appealability

(“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a

writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal denial

of a § 2254 application). Exercising jurisdiction under 28 U.S.C. § 1291, we deny a

COA and dismiss this matter.


       * This order is not binding precedent, except under the doctrines of law of the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

                                  A. State Proceedings

       The State of Colorado charged Mr. Morehead with driving under the influence and

driving with excessive alcohol content. The State planned to present Cynthia Burbach’s

testimony at trial. Ms. Burbach was a supervisor at the Colorado Department of Health

and Environment laboratory, where Mr. Morehead’s blood alcohol content was tested

after his arrest.

       Leading up to trial, Mr. Morehead issued a subpoena duces tecum to the

University of Colorado at Colorado Springs seeking Ms. Burbach’s graduate school

application. Mr. Morehead asserted Ms. Burbach’s application, which included her

undergraduate transcript, would reveal she knowingly misrepresented her academic

background while testifying as an expert witness in other cases.

       The Douglas County Court quashed the subpoena, concluding the jury might place

a disproportionate value on Ms. Burbach’s undergraduate record. The jury convicted Mr.

Morehead of the lesser included offense of driving while ability impaired. He was

sentenced to ten months in jail with an additional 365 days stayed upon condition of

successful completion of supervised probation.

       On direct appeal to the state district court, Mr. Morehead contended the county

court improperly quashed the subpoena seeking Ms. Burbach’s academic records. The

state district court affirmed the county court, concluding Ms. Burbach’s undergraduate
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records would have been irrelevant to her testimony.

       Mr. Morehead then filed a petition for certiorari in the Colorado Supreme Court,

which was denied.

                          B. Federal District Court Proceedings

       Mr. Morehead filed a 28 U.S.C. § 2254 application for a writ of habeas corpus

with the United States District Court for the District of Colorado. The application raised

one claim for relief, asserting he “was convicted in violation of his right to due process of

law under the Fifth and Fourteenth Amendments to the Constitution of the Untied [sic]

States by the knowing use of perjured testimony and the suppression of evidence which

would have revealed the perjury to the jury.” Aplt. App. at 10 (capitalization altered).

       The district court concluded the claim had two distinct parts: (1) “actual perjury”

and (2) “suppressed evidence.” Aplt. App. at 92. That is, Mr. Morehead argued there

were constitutional violations (1) when Ms. Burbach committed perjury by testifying at

trial about her laboratory’s accreditation and (2) when the County Court quashed the

subpoena seeking Ms. Burbach’s academic records.

       On April 27, 2015, the district court dismissed the “actual perjury portion” of the

claim as unexhausted and procedurally barred. Aplt. App. at 100.

       On October 16, 2015, the district court addressed the merits of the “suppressed

evidence” portion of the claim and concluded Mr. Morehead was not entitled to relief.

The court therefore denied Mr. Morehead’s § 2254 application and denied a certificate of

appealability. Mr. Morehead then filed this application requesting a COA only on the
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“suppressed evidence” portion of his claim.

                                       II. DISCUSSION

                                  A. Standard of Review

       A COA is necessary to appeal from a district court’s denial of a § 2254

application. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a COA,

Mr. Morehead must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He

may do so by “showing that reasonable jurists could debate whether . . . the [motion]

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484

(quotations omitted).

       When, as here, a state court has decided the applicant’s claim on the merits, we

make this COA determination by “look[ing] to the District Court’s application of [The

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)] to [the applicant’s]

constitutional claims and ask whether that resolution was debatable among jurists of

reason.” Miller-El, 537 U.S. at 336. AEDPA provides that federal courts cannot grant

habeas relief unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2).
                                              -4-
                                       B. Analysis

       Mr. Morehead argued in his § 2254 application that his conviction violated his

Fifth and Fourteenth Amendment rights based on “the suppression of evidence [Ms.

Burbach’s academic records] which would have revealed perjury to the jury.” Aplt. App.

at 10. He contended the suppression was contrary to Brady v. Maryland, 373 U.S. 83

(1963), and its progeny, which hold due process requires disclosure of exculpatory

evidence.

       The Government filed an answer to Mr. Morehead’s § 2254 application. In his

response to the Government’s answer, Mr. Morehead relied on Davis v. Alaska, 415 U.S.

308 (1974), to argue he was denied his Sixth Amendment right to cross-examination.

The district court refused to consider the argument because Mr. Morehead did not raise a

Sixth Amendment claim in his § 2254 application.

       In his application to this court for a COA, Mr. Morehead abandons his Brady due

process argument and focuses on his Davis Sixth Amendment argument. But the Sixth

Amendment claim was absent from the initial § 2254 application and was therefore

forfeited. See Pedockie v. Bigelow, 581 F. App’x 698, 700 (10th Cir. 2014)

(unpublished) (holding claims not raised in § 2254 application are forfeited);1 Davis v.


       1
         We find the reasoning of this unpublished opinion, though not precedential, to be
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

                                            -5-
Workman, 695 F.3d 1060, 1077 (10th Cir. 2012) (holding a COA applicant forfeited a

claim of error in district court’s failure to hold an evidentiary hearing by not seeking a

hearing in his § 2254 proceeding).

       Moreover, Mr. Morehead does not contest the district court’s ruling on his Brady

due process claim. He has thus failed to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

                                     III. CONCLUSION

       For the foregoing reasons, we deny Mr. Morehead’s application for a COA and

dismiss this matter.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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