UNITED STATES COURT OF APPEALS TENTH CIRCUIT

DANIEL LaRAYE HOLMAN, Petitioner - Appellant,

v. JEORLD BRAGGS, Jr., Warden, Respondent - Appellee. No. 18-5033 (D.C. No. 4:14-CV -00696-JHP-FHM) (N.D. Oklahoma)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , HARTZ , and McHUGH , Circuit Judges.

Petitioner Daniel Holman, an Okla homa inmate appearing pro se, seeks a certificate of appealability (“COA” ) to challenge the district court’s dismissal of his application for relief under 28 U.S.C. § 2254. 1 For the following reasons, we 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* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however , for its persuasive value consistent with Federal Rule of A ppellate Procedure 32.1 and 10 th Circuit Rule 32.1.

1 Because Mr. Holman appears pro se, we construe his filings libe rally. See Garza v. Davis , 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). But we draw the lin e at taking “on the responsibility of s erving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### September 24, 2018 Elisabeth A. Shumaker Clerk of Court2 BACKGROUND On July 15, 2010, Mr. Holman an d Derreon Carter entered Elizabe th Craig’s apartment. Ms. Craig testified th at she had just returned home from Taco Bell around twenty seconds before the two men entered her apartment. Mr. Ca rter placed a cold, sharp object against Ms. Craig’s neck and asked where she kept her money. Ms. Craig pointed to her purse and Mr. Hol man retrieved her purse and car ried it around. Mr. Carter then ordered Ms. Craig to take off her clothes and, when she resisted, he tried to undress her. Ms. C raig told Mr. Carter to “Please, just let me get you my money.” ROA at 385 (quoting Tr . III at 35–36). Mr. Carter allow ed Ms. Craig to crawl to her purse and she reached inside , pulled out a handgun, and fir ed multiple shots at Mr. Carter and Mr. Holman. Upon hearing the gunshots, Ms. Craig ’s boyfriend, Shannon Chambers, woke up from the othe r room and began wrestling with Mr. Carter and Mr. Holman. When she had a clear shot, Ms. Craig fired again at Mr. Carter and Mr. Holman, hitting Mr. Carter in t he back of the head and Mr. Holman in the forehead. Mr. Carter died from his injuries. Ms. Craig testified she did not know Mr. Carter or Mr. Holman a nd had never seen either of them before they ent ered her apartment without her co nsent. However, Mr. Holman testified Mr. Carter a nd Ms. Craig knew each other a nd that Ms. Craig fired the gun after beginning to argue with Mr. Carter. Mr. Holman al so testified he did not have any weapons on him when he entered Ms. Craig’s apartment a nd had no intention of robbing or sexually assaulting her.3 The jury found Mr. Holman guilty of Felony Murder, Attempted Ro bbery with a Dangerous Weapon, and Attempted First Degree Rape. Mr. Holman f iled a motion for a new trial, alleging he had newly discovered evidence showing Mr . Carter and Ms. Craig knew each other. This evidence cons isted of two witnesses claim ing to have seen Mr. Carter and Ms. Craig togethe r on multiple instances, includ ing one time in Ms. Craig’s apartment. The state district court denied Mr. Holm an’s motion because the evidence came from people he knew before trial and therefore co uld have been discovered prior to tria l with due diligence. Mr. Holman appealed to the Oklahom a Court of Criminal Appeals ( “OCCA”), alleging ineffective assistance of trial counsel for (1) failin g to adequately investigate the relationship between Mr. Carter and Ms. Craig, (2) presenting a n incoherent defense by arguing Mr. Carter and Mr. Holman ma y have entered Ms. Craig’s apartment by mistake, and (3) failing to impeach Ms. Cra ig’s testimony that the robbe ry started around twenty seconds after she came home with an empty Taco Bell wrapper fou nd in her apartment. The OCCA remanded for an evidentia ry hearing on the ineffective assistance of counsel claims. The state district court, applying Strickland v. Washington , 466 U.S. 668 (1984), denied Mr. Holman’s ineffective assistance of counsel claims. A s to the first claim, the state district court concluded Mr. Holman’s trial counsel was n ot deficient because he understood the importance of p roving Mr. Carter and Ms. Craig h ad a relationship from the beginning and undertook sign ificant investigatory steps by hiring an electronic investigator and havi ng Mr. Holman and Mr. Holman’s friends and family search for4 individuals who may be able to t estify about that relationship. Additionally, the state district court concluded Mr. Hol man was not prejudiced even if trial counsel was deficient because the two new witnesses ha d significant credibi lity problems. The state district court also rejected Mr. Holman’s second and third arguments for ineffective assistance of counsel . Recognizing “[s]trategic dec isions are virtually unassailable on appeal,” the state district court concluded the mistaken entry suggestion did not fall below an objective standard of reasonableness. ROA at 186. Similarly, the state district court found “the failure to cross- examine [Ms.] Craig about where she ate part of her meal[] does not constitute such conduct.” Id. It also concluded neither of those alleged errors was prejudicial. The OCCA agreed with the state district court, concluding the c ourt did not abuse its discretion in its factual fi ndings and correctly determined there was no ineffective assistance of counsel. Mr. Holman challenged the OCCA’s decisio n in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. The federal d istrict court concluded Mr. Holman was not entitled to relief under § 2254 because he w as unable to show the OCCA made an unreasona ble determination of the facts or unreaso nably applied federal law. The federal district court also denied Mr. Holman a COA. M r. Holman appealed this decision, filed an application fo r a COA with this court, and f iled a motion to proceed in forma pauperis on appeal. ANALYSIS Because the federal district cour t declined to issue a COA, we lack jurisdiction to consider the merits of any of Mr. Holman’s ineffective-assistan ce claims unless and until5 we issue a COA of our own. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 327 (2003). And we cann ot issue a COA unless we are p ersuaded that Mr. Holman “has made a substantial sh owing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). This standa rd is met only if Mr. Holman ca n demonstrate “that reasonable jurists could deba te whether . . . the petition shou ld have been resolved in a different manner or that the issu es presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 894 (1983)). “AEDP A’s deferential treatment of state court decisions must be incorporated in to our consideration of a habe as petitioner’s request for COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). If a state court decided a claim on the merits, a federal court cannot grant a writ of habeas corpus unless the applican t shows that the state court’s adjudication of the claim (1) resulted in a decision that w as contrary to, or involved an unreasonable application of, clearly establishe d Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable de termination of the facts in light of the evide nce presented in the State co urt proceeding. 28 U.S.C. § 2254(d). This “diffi cult to meet” standard requires a state prisoner to “show that the state court’s ruling on the claim being presented in f ederal court was so lacking in justification that there was an error well understood and compr ehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 102–03 (2011). In order to establish a claim for ineffective assistance of cou nsel, a petitioner must show that “counsel’s performance was deficient” and that “the d eficient performance6 prejudiced the defense.” Strickland , 466 U.S. at 687. Be cause an ineffective assistance of counsel claim is a “general stan dard,” we undertake a “doubly d eferential judicial review” of the state court’s decision. Knowles v. Mirzayance , 556 U.S. 111, 123 (2009). In his application for a COA, M r. Holman summarily asserts he was denied effective assistance of counsel but fails to provide any facts relating to his claim or identify any error made by the fe deral district court. Mr. Holm an does not attack the federal district court’s conclusi on that the OCCA’s application of Strickland was not objectively unreasonable. Nor does he argue the OCCA made an un reasonable determination of fact. Even when liberally construing his appli cation, we conclude Mr. Holman has failed to “demons trate that reasonable jurists w ould find the district court’s assessment of the cons titutional claims debatable or wr ong,” Slack , 529 U.S. at 484, and we therefore deny his application for a COA. * * * Mr. Holman also filed a motion to proceed in forma pauperis on appeal. “In order to succeed on his moti on, an appellant must show a financial in ability to pay the required filing fees and the existence o f a reasoned, nonfrivolous argum ent on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Mr. Holman has not met this burden. Except fo r two conclusory sentences generally alleging ine ffective assistance of counsel, Mr. Holman failed to provide any factual or legal arguments. He therefore has not sh own the existence of a reasoned, nonfrivolous argument to support his appeal. Accordin gly, his motion for leave to proceed in forma pa uperis is denied.7 CONCLUSION For the reasons stated, we DENY Mr. Holman a COA and DISMISS this appeal. His motion for leave to proceed in forma pauperis is also DENIED

. Entered for the Court Carolyn B. McHugh Circuit Judge