                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 21, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 MAXIE C. BARBER,

              Petitioner - Appellant,                      No. 12-6067
       v.                                               (W.D. Oklahoma)
 DAVID MILLER, Warden of the                      (D.C. No. 5:10-CV-01407-C)
 Lawton Correctional Facility,

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.


      Applicant Maxie Barber, an Oklahoma state prisoner, filed an application

for relief under 28 U.S.C. § 2254 in the United States District Court for the

Western District of Oklahoma. The district court denied the application, and

Applicant seeks to appeal. Construing his notice of appeal as a request for a

certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(A) (requiring a

COA to appeal the denial of a § 2254 application); Fed. R. App. P. 22(b)(2) (“If

no express request for a certificate is filed, the notice of appeal constitutes a

request addressed to the judges of the court of appeals.”), we deny the request and

dismiss the appeal.
      In October 2005 a 15-year-old girl (C.S.) accused Applicant—the on-again-

off-again boyfriend of her mother, Nancy Smith—of raping her on four different

occasions over a period of seven months. At trial C.S. recounted each rape and

testified that no one else was present during the assaults. Applicant testified

about the events surrounding the last alleged rape and asserted that Ms. Smith

made C.S. fabricate the allegations because she was angry that he had ended their

relationship and was seeing another woman, Amy Kroeger. Although the

prosecution presented no DNA evidence linking Applicant to the alleged crimes,

C.S.’s doctor, who had examined her before and after the rapes, testified that

C.S.’s vaginal canal was much larger after the alleged rapes and that the

enlargement was likely the result of multiple sexual penetrations. Ms. Smith and

Ms. Kroeger also testified.

      The jury found Applicant guilty on four counts of first-degree rape, see

Okla. Stat. tit. 21, § 1114(A) (2008), and he was sentenced in May 2008 to life

imprisonment on each count in accordance with the jury’s recommendation. The

judge ordered that the sentences be served concurrently. Applicant

unsuccessfully sought relief in Oklahoma court on direct appeal and in

postconviction proceedings.

      On December 30, 2010, Applicant, represented by counsel, filed a § 2254

application in federal district court raising claims of ineffective assistance of trial

and appellate counsel. He alleged that his trial counsel was ineffective for failing

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to call certain witnesses who would have testified that (1) Ms. Smith had talked

about purchasing a vibrator for C.S., (2) C.S. used vibrators, (3) Ms. Smith had

attended several “swingers” parties (apparently leaving C.S. alone at home) after

C.S. had accused Applicant of rape, (4) Ms. Smith’s relationship with Applicant

did not end until just a few days before C.S.’s allegations were made to the

police, (5) C.S. had a fascination with gay Asian men and gay male sex, (6)

Applicant and Ms. Smith had a rocky relationship, (7) Ms. Smith was extremely

jealous of Ms. Kroeger, (8) C.S. never acted as if anything was wrong, (9)

Ms. Smith had said that if she could not have Applicant, then no one could have

him, (10) it was planned for C.S. to stay at Applicant’s house on the day of the

last alleged rape because he had better internet service, (11) Ms. Kroeger had

been at Ms. Smith’s house on that day, (12) C.S. could not have kept the

allegations secret for so long, and (13) Applicant was never observed doing

anything inappropriate with C.S. The application also claimed that trial counsel

was ineffective for failing to obtain (1) cell-phone records that would have shown

that C.S. called Applicant several times to take her to school and that

Ms. Kroeger was at Ms. Smith’s house on the day of the last rape, (2) text

messages and emails from Applicant to Ms. Smith telling her that the relationship

was over, and (3) lab testing on vibrators and C.S.’s clothing. Applicant’s claim

that his appellate counsel was ineffective was based on counsel’s failure to raise

these issues on direct appeal.

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      The magistrate judge’s Report and Recommendation (the R&R), which was

adopted by the district court, addressed these issues on the merits and de novo,

assuming that they had been exhausted but not relying on their disposition in state

court. The R&R concluded that Applicant’s appellate counsel was not ineffective

because his failure to raise the alleged instances of ineffective assistance of trial

counsel would not have changed the outcome on direct appeal. According to the

R&R, the omitted testimony would have been insignificant, irrelevant, or

cumulative, or would have been barred as improper opinion testimony or contrary

to Oklahoma’s rape shield law.

      As for counsel’s failure to present the cell-phone records, the R&R found

that they would have been of little importance because Applicant had referred to

them (to refresh his recollection) while testifying at length about the date, time,

participants, and content of the calls. The R&R also concluded that the

information in the emails and text messages was cumulative of trial testimony or

barred by the rape shield law, that any forensic evidence of C.S.’s use of a

vibrator would have been excluded under the rape shield law, and that further

forensic testing of C.S.’s pants was unnecessary because a detective testified at

trial that nothing on the pants implicated Applicant.

      In this court Applicant raises essentially the same arguments presented in

his § 2254 application. A COA will issue “only if the applicant has made a

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

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§ 2253(c)(2). This standard requires “a demonstration that . . . includes showing

that reasonable jurists could debate whether (or, for that matter, agree that) the

[application] 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). In other

words, the applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id.

      To establish ineffective assistance of counsel, an applicant must show (1)

that his attorney’s performance “fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that

he suffered prejudice, meaning that there is “a reasonable probability that, but for

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

different,” id. at 694. Our review is “highly deferential” and we “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound

trial strategy.” Id. at 689 (internal quotation marks omitted). “[I]n analyzing an

appellate ineffectiveness claim based upon the failure to raise an issue on appeal,

we look at the merits of the omitted issue.” Cargle v. Mullin, 317 F.3d 1196,

1202 (10th Cir. 2003) (internal quotation marks omitted). “[I]f the [omitted]




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issue is meritless, its omission will not constitute deficient performance.” Id.

(footnote omitted).

      Applicant has failed to persuade us that there is anything debatable about

the district court’s resolution of his claims. As the R&R observed, the omitted

testimony and evidence was either inadmissible, insignificant, or cumulative of

other evidence at trial. Even if trial counsel’s performance was deficient,

Applicant has not shown that he was prejudiced by his trial counsel’s

representation. As a result, his claims of trial- and appellate-counsel

ineffectiveness are unquestionably without merit.

      We DENY a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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