UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

QUINTON LEE AMEY, 

 Petitioner - Appellant, 

v. 

ROBERT PATTON, Director, 

 Respondent - Appellee. 

No. 14-5097 

(D.C. No. 4:11-CV-00258-TCK-TLW) 

(N.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges. 

 

 Quinton Lee Amey was convicted in Oklahoma state court of feloniously 

pointing a firearm and possessing a firearm after a former felony conviction. His 

28 U.S.C. § 2254 habeas petition was denied by the district court. Proceeding pro se 

and wanting to appeal from the denial, he requests a certificate of appealability 

(COA) to appeal. We deny the request 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* This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 10, 2015

Elisabeth A. Shumaker 

Clerk of Court
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BACKGROUND

 Amey’s convictions arise out of a confrontation he had with Ninaree Furch 

and her daughter, T.K. The trial was bifurcated. The jury first considered the charge 

of feloniously pointing a firearm. 

 As to that charge, Furch and T.K. testified they were out walking one evening 

in August 2008 when a man ran up and blocked their path forward. The man was 

African-American, had braided hair, and was wearing “dark colored Dickies” pants 

and green plaid boxers, but no shirt. R., Vol. II at 655. Furch was concerned 

because she thought “he was on something.” Id. at 662. 

 When Furch turned away to seek help from “[t]wo white young men” she had 

passed, id., Vol. II at 657, T.K. saw their assailant point a handgun “to the back of 

[her mother’s] head” as he said, “I’ll blow your F’ing brains out,” id., Vol. I at 192, 

195. Furch heard the comment and turned around. The man then began beating his 

chest with the gun, saying he was a security guard and was there to “help [them] 

rather than white people messing with [them].” Id. at 197. 

 Furch and T.K. eventually got passed him and called 911 from a nearby home. 

They both testified to Amey being the man who had accosted them. 

 Police officer Brian Filby testified to having been dispatched to investigate the 

911 call. He arrived in the area five minutes after the call and saw “a black male . . . 

frantically waiving his arms trying to get [him] to stop to talk to him.” Id., Vol. II at 

688. The man was “was very excited and loud, [acting] definitely like something was 
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wrong.” Id. at 689. He told Filby there was a “black male with braids and no shirt” 

down the street with a gun. Id.

 Filby “continued looking around in the area” and “finally found [Furch and 

T.K.].” Id. at 690, 691. T.K. told Filby or another officer that the man who had 

accosted her and her mother “was a black male, approximately five-seven, 200 

pounds, and he had braids in his hair,” and he was wearing “blue or black Dickie 

pants . . . [and] blue or green plaid boxers that you could see . . . hanging out the top 

of his pants.” Id. at 693.1

 Filby then went over to where two people were standing. 

One of them “matched the [assailant’s] description really well other than he was 

wear[ing] a shirt.” Id. at 694. Filby arrested that man, who was Amey. No gun was 

found. 

 The jury convicted Amey, and the case proceeded to the second stage, where 

the jury considered the charge of possessing a firearm after a former felony 

conviction. According to Amey’s testimony he had no firearm in his possession 

when he confronted Furch and T.K., and he approached Furch only after hearing her 

“cussing loud[ly].” R., Vol. II at 772. On cross-examination, Amey admitted to four 

prior felony convictions and being shirtless before approaching Furch and T.K. 

 

1

 On direct examination, Officer Filby testified T.K. gave him a description of 

the assailant before continuing with his search for that man. See R., Vol. II at 

692-94. But on cross-examination and redirect, Officer Filby stated he did not speak 

with Furch and T.K. “before [ Amey] was arrested.” Id. at 704; see also id. at 

700-01. Rather, “[t]here was another officer . . . talking with” Furch and T.K. Id. at 

704. 
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 The jury returned another guilty verdict and recommended incarceration for 

thirty-five years on the pointing-a-firearm count and fifteen years on the illegal 

possession count. The court accepted the jury’s recommendations and ordered the 

sentences to be served consecutively. The Oklahoma Court of Criminal Appeals 

(OCCA) summarily affirmed the convictions and sentence. 

DISCUSSION

I. Standards of Review

 The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a COA 

before a state prisoner may appeal from a denial of habeas relief. To be entitled to a 

COA the applicant must demonstrate that jurists of reason could disagree with the 

district court’s resolution of his constitutional claims or conclude the issues deserve 

further treatment. See 28 U.S.C. § 2253(c)(1)(A), (c)(2); Dulworth v. Jones, 

496 F.3d 1133, 1137 (10th Cir. 2007). 

 Under AEDPA, if the state court adjudicated the merits of a claim, a federal 

court may grant habeas relief only if the state court 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). With the “clearly 

established” requirement as our guide, we must “look to the District Court’s 

application of AEDPA to petitioner’s constitutional claims and ask whether that 
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resolution was debatable amongst jurists of reason.” Miller–El v. Cockrell, 537 U.S. 

322, 336 (2003). 

II. Sufficiency of the Evidence

 On direct appeal, Amey claimed the evidence was insufficient to support his 

convictions because the accounts Furch and T.K gave of their encounter with him 

varied from the night of his arrest to the time of trial. For instance, when Amey was 

arrested, T.K. told police she pushed him away from her mother, but at trial, T.K. 

admitted she never touched Amey. And Furch told police Amey was armed with 

“a .45 automatic,” but at trial she testified the gun was “a .32 or .38 revolver.” 

R., Vol. II at 671, 662. 

 The OCCA concluded any rational trier of fact could have found the essential 

elements of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 

443 U.S. 307, 319 (1979). The district judge concluded the OCCA did not 

unreasonably apply Jackson, explaining: “[al]though there were several 

inconsistencies in T.K.’s and Furch[’s] trial testimony when compared to their prior 

statements, the testimony regarding the possession of a gun and [Amey’s] actions 

with the gun were consistent.” R., Vol. I at 274. 

 Not only do we agree, but we cannot discern any basis upon which jurists of 

reason would see a reason for debating the propriety of the assessment. T.K.’s 

testimony about Amey pointing a handgun at her mother, threatening to shoot her, 

and beating his chest with the gun was not inconsistent with T.K.’s earlier statements 
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and was consistent with her mother’s testimony. The variations in their descriptions 

of their encounter with Amey do not show the jury’s guilty verdicts were outside “the 

bounds of reason,” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (internal 

quotation marks omitted). It is well within the ken of a jury to decide whether 

witness testimony is reliable. Weighing inconsistent statements is part of that 

process. The district judge’s rejection of Amey’s sufficiency argument is not 

debatable. 

III. The Confrontation Clause

A. Hearsay 

 Before the OCCA Amey also claimed the admission of the statement by the 

“unidentified and excited African-American” concerning a gunman down the street 

violated the Confrontation Clause. R., Vol. I at 64. The OCCA concluded the 

statement was admissible as an excited utterance and did not violate the 

Confrontation Clause because it was not testimonial. The district judge agreed, 

stating “the statement squarely falls into the ‘ongoing emergency’ category of 

nontestimonial hearsay statements.” Id. at 278. 

 Again we see no basis for considering this matter further; the correctness of 

the analysis is not reasonably debatable. The Sixth Amendment’s Confrontation 

Clause bars admission of a testimonial hearsay statement when the witness is 

unavailable to testify at trial and the defendant had no prior opportunity to 

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). 
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A hearsay statement is testimonial if made with “a primary purpose of creating an 

out-of-court substitute for trial testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 

1155 (2011). But “[w]hen . . . the primary purpose of an interrogation is to respond 

to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is 

not within the scope of the Confrontation Clause.” Id.

 Here, the witness told Filby a gunman was down the street, “not to provide a 

solemn declaration for use at trial, but to bring an end to an ongoing threat,” Williams 

v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality opinion). The Confrontation 

Clause is not implicated by such a non-testimonial statement. See Bryant, 131 S. Ct. 

at 1155. 

B. Impeachment 

 At trial, defense counsel sought to impeach Furch with evidence of her 

conviction for feloniously pointing a firearm. The trial judge allowed counsel to 

inquire whether Furch had ever been convicted of a felony, but would not permit 

inquiry as to the specific felony. 

 On appeal to the OCCA, Amey argued revealing the nature of the prior 

conviction was necessary because Furch’s “confusion about the type of gun she 

claimed to see might be understandable for a person unfamiliar with guns, but 

Furch[’s] criminal record reveals . . . she has more than a passing familiarity with 

firearms.” R., Vol. I at 70. The OCCA decided the limitation on impeachment was 

within the trial court’s discretion, and there was no Confrontation Clause violation. 
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 The district judge also determined the impeachment limitation was reasonable 

and did not violate Amey’s right of confrontation. Even with the limitation, he 

noted, the jury not only learned Furch had a prior felony conviction but that she was 

“pretty familiar with handguns,” id. at 282 (internal quotation marks omitted), and 

knew “there’s a big difference between a revolver and an automatic,” id. at 282-83 

(internal quotation marks omitted). 

 “[T]he Confrontation Clause guarantees an opportunity for effective 

cross-examination, but not cross-examination that is effective in whatever way, and 

to whatever extent, the defense might wish.” United States v. DeChristopher, 

695 F.3d 1082, 1096 (10th Cir. 2012) (internal quotation marks omitted). A violation 

occurs only when “[a] reasonable jury might have received a significantly different 

impression of [the witness’s] credibility had [the defendant’s] counsel been permitted 

to pursue his proposed line of cross-examination.” Delaware v. Van Arsdall, 

475 U.S. 673, 680 (1986). 

 The jury had the necessary information to weigh Furch’s credibility before 

reaching a verdict. Despite not being permitted to inquire about the nature of her 

felony conviction, Amey was still able to show the jury she was familiar with 

firearms and to call into question her varying descriptions of the gun she saw. 

Consequently, there was no Confrontation Clause violation, and thus, the district 

judge properly found the OCCA’s decision on this point not unreasonable. 
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IV. Ineffective Assistance of Counsel

 On direct appeal, Amey claimed his trial counsel was ineffective because she 

failed to (1) investigate the facts underlying Furch’s felony conviction, which would 

have revealed Furch pointed a gun at a security guard; (2) obtain mental-health 

records regarding Furch; and (3) offer into evidence a videotaped interview showing 

Amey was sober when arrested. The OCCA rejected Amey’s claims, and the district 

judge determined the OCCA did not unreasonably apply Strickland v. Washington, 

466 U.S. 668, 691 (1984) (requiring deficient performance and prejudice to prevail 

on an ineffective-assistance claim). His determination is not debatable for at least 

three reasons. 

 First, whether Amey claimed to be a security guard during his encounter with 

Furch and T.K. is irrelevant to the charges for which he was on trial.2

 Equally 

irrelevant is the fact that the victim of Furch’s crime may have been a security guard. 

Thus, the OCCA could have reasonably determined trial counsel’s failure to 

investigate the circumstances underlying Furch’s conviction would not have been 

prejudicial. 

 

2

 The elements of feloniously pointing a firearm are (1) willfully or without 

lawful cause pointing a firearm at any person, (2) to threaten the person or with the 

intent of “discharging the firearm or with any malice or for any purpose of injuring 

. . . or for purposes of whimsy, humor or prank, or in anger or otherwise.” 21 Okla. 

Stat. Ann. § 1289.16. Possessing a firearm after a former felony conviction requires 

(1) possessing a firearm or having it under the person’s immediate control, (2) after a 

felony conviction in any state or federal court. Id. § 1283(A). 
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 Second, regarding counsel’s failure to obtain Furch’s mental-health records, 

Amey fails to indicate how Furch’s testimony was affected by any mental health 

issues. Indeed, he admits he “is speculating to a certain extent.” Appl. for COA at 

13. Speculation is insufficient to obtain habeas relief on an ineffective assistance 

claim. See Harrington v. Richter, 562 U.S. 86, 102 (2011) (explaining habeas relief 

is available only “where there is no possibility fairminded jurists could disagree . . . 

the state court’s decision conflicts with th[e] [Supreme] Court’s precedents” 

(emphasis added)). 

 Third, Amey does not explain how his appearing to be sober when interviewed 

by police would have had any effect on the jury’s verdict. Evidence of sobriety was 

irrelevant to the charges against him, and he testified he had been “drinking that 

night.” R., Vol. II at 783. In short, Amey has not shown how he was prejudiced by 

counsel’s failure to offer the videotaped interview into evidence. 

V. State Law Claims

 Amey argued on direct appeal his convictions violated Oklahoma’s statutory 

double-jeopardy proscription. See 21 Okla. Stat. Ann. § 11. Additionally, he sought 

modification of his sentences from consecutive to concurrent. The OCCA denied 

relief. 

 The district judge first noted Amey’s double-jeopardy argument was a statelaw issue not cognizable in federal habeas proceedings. See Estelle v. McGuire, 

502 U.S. 62, 67-68 (1991). Next, the district judge observed challenges to a state 
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court’s sentencing decision are cognizable only if the sentence exceeds statutory 

limits, see Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000), and Oklahoma 

law authorizes consecutive sentences, see 22 Okla. Stat. Ann. § 976. Those bed rock 

propositions are not subject to debate. 

CONCLUSION

 We deny Amey’s application for a COA and dismiss this matter. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk