UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ EARNEST EUGENE PADILLOW, Petitioner - Appellant,

v. SCOTT CROW, Interim Director, Oklahoma Department of Corrections, Respondent - Appellee. No. 21-5064 (D.C. No. 4:18-CV -00122-TCK-CDL) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MATHESON , KELLY , and CARSON , Circuit Judges.

________________ _________________ Earnest Eugene Padillow, an Oklahoma state prisoner appearing pro se, seeks a certificate of appealability (COA) under 28 U.S. C. § 2253(c)(1)(A) to appeal the district court’s denial of his application for habeas relief under 28 U.S.C. § 2254. He also requests to proceed in forma pauperis (“ ifp ”). We deny his request for a COA and dismiss this matter and we deny his ifp request. 1

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1 Because Mr. Padillow is pro se, we constr ue his filing liberally, but we do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### June 1, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 12 I. BACKGROUND
A. State Court Proceedings Mr. Padillow was charged with three counts of first-degree rape and two counts of rape by instrumentation in Tulsa County Dist rict Court. A jury convicted him on all counts. On two of the first-degree rape co nvictions, the court sent enced Mr. Padillow to consecutive life sentences without the possi bility of parole. On the remaining convictions, the court imposed co nsecutive 20-year sentences. During the trial, shortly before Mr. Pad illow was to testify, his attorneys stated outside the jury’s presence that Mr. Pad illow would not cooperat e in preparing his testimony and wanted to represent himself. Mr. Padillow explained that he wanted to recall particular witnesses who had already tes tified, been subject to cross-examination, and been released by counsel. The trial court denied his reque st. Once the jury returned, Mr. Padillow stood up as if to walk to the witness stand, but instead attacked his counsel, Mark Cagle, with such force that it broke th e chairs at the defense table. Mr. Cagle’s co-counsel, Stephen Lee, help ed sheriff’s deputies separate Mr. Padillow from Mr. Cagle, and Mr. Padillow was remo ved from the courtroom. The state trial court judge then made a record in front of the jury that Mr. Padillow’s actions constitute d a knowing and volun tary waiver of his right to be present and his right to testify. After th e defense rested and the jury retired for deliberations, the judge provided a fuller description of Mr. Padillow’s attack. The judge stated that although the attack clearly affect ed the jury, it was equa lly clear the incident should not cause a mistrial. In support of that conclusion, th e trial court observed that the Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 23 jurors did not become emotional, cry, or ev en gasp; that Mr. Lee continued to represent Mr. Padillow effectively, ma king zealous and thorough cl osing argument s; and that neither party referenced the attack during closing arguments. Mr. Padillow appealed his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”), asserting two relevant errors: (1 ) his removal from the courtroom during the trial violated his constitutional right to be pr esent, and (2) his removal also violated his constitutional right to testify on his own behalf. The OCCA rejected these issues on appeal and upheld the verdict and sentence. 2 In March 2016, Mr. Padillow filed a pro se application for post-conviction relief in the trial court. He raised several issues. First, he alleged that his appellate counsel rendered ineffective assistance by refusing to raise certain issues on appeal that Mr. Padillow had suggested. Second, he claimed that his trial attorneys were constitutionally ineffective in six ways because he failed to:
1. Thoroughly cross-examine a lab techni cian who testified for the state;
2. Investigate the availability of a video re cording of the victim’s sexual assault nurse examination;
3. Call one of the state’s witne sses as a rebuttal witness;
4. Question Denise Padillow about being co erced by the State to testify;

2 Mr. Padillow asserted two other issues on appeal. First, he argued the trial court erred in finding him in contem pt (based on his attack on M r. Cagle) without first offering him an opportunity to be heard. Second, he argued the documents reflecting the judgment and sentence contained certain techni cal errors. The OCCA agreed with these assertions and remanded to the trial court for the errors to be correct ed. Neither issue is relevant to the instant application for a COA. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 34 5. Find Regina Johnson, a potential defense witness; and
6. Request that “crucial evidence” be thrown out, R. Vol. I at 155. Third, Mr. Padillow claimed the trial court erred in denying Mr. Padillow’s motion to dismiss defense counsel. Finally, Mr. Pa dillow argued the jury ’s verdict was not supported by sufficient eviden ce. Mr. Padillow sought a hear ing on all of these issues and the appointmen t of counsel. The trial court denied Mr. Padillow’s app lication for post-conviction relief without a hearing. It rejected on the merits Mr. Pa dillow’s claim that his appellate counsel was ineffective. The court held Mr. Padillow’s remaining claims were procedurally barred because Mr. Padillow had not ra ised them on direct appeal. Finally, the court denied Mr. Padillow’s request for counsel. Mr. Padillow appealed the denial of his application to the OCCA, and the OCCA affirmed on the grounds relied on by the trial court.
B. Federal District Court Proceedings Mr. Padillow then filed this action in federal district court, challenging his conviction under 28 U.S.C. § 2254. His petiti on for writ of habeas corpus asserted that his conviction and sentence violated federal law on eight grounds:
1. Appellate counsel was ineffective;
2. His trial attorneys were ineffective fo r failing to obtain and introduce a video of a victim’s medical examination;
3. His trial attorneys were ineffective for failing to find Regina Johnson;
4. The trial court erred in denying Mr. Pa dillow’s pro se motion to dismiss his trial attorneys; Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 45 5. His trial attorneys were ineffective fo r failing to object to the admission of “crucial evidence,” R. Vol. II at 16;
6. The trial court erred in denying Mr. Padillow’s request fo r an evidentiary hearing on his application for post-conviction relief;
7. The trial court erred in removing Mr. Padillow from the courtroom during closing arguments in violation of the Confrontation Clause; and
8. The trial court erred in denying Mr . Padillow the right to testify. The district court denied Mr. Padillow’s petition and denied a COA. The court first held that because Mr. Padillow did not raise claims 2 through 5 on direct appeal, they were waived under Okla homa law and therefore procedurally barred. The court noted that Mr. Padillow could overcome the proc edural default if he showed cause for the default and actual prejudice as a result of the a lleged violation of federal law, or showed that failure to consider the cl aims would result in a fundament al miscarriage of justice. R. Vol. I at 264 (quoting Coleman v. Thompson , 501 U.S. 722, 750 (1991)). The court concluded that Mr. Padillow ha d made no such showing. The district court addresse d and rejected the merits of Mr. Padillow’s remaining claims. First, it held that none of the cl aimed appellate counsel errors satisfied the ineffective assistance test in Strickland v. Washington , 466 U.S. 668, 687 (1984). Second, it held that the trial court’s deci sion not to hold an evidentiary hearing on Mr. Padillow’s application for post-convicti on relief cannot be challenged on habeas review because there is no federal constitu tional requirement that states provide a criminal defendant with any particular form of collateral review. Third, it rejected Mr. Padillow’s claims that the trial cour t violated his Sixth Amendment rights by Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 56 removing him from the courtroom af ter he attacked his counsel. In particular, it held that under Illinois v. Allen , 397 U.S. 337, 343 (1970), and in light of Mr. Padillow’s “mistreatment of attorneys, attempts to manipulate them and the court, aggressive behavior, and a physical attack during trial . . . the OCCA’s findings were [not] contrary to or an unreasonable applicatio n of relevant Supreme Court law.” R. Vol. I at 279. Mr. Padillow requests a COA to appeal por tions of the district court’s order and has requested leave to pr oceed in forma pauperis.
II. DISCUSSION
A. COA and AEDPA Standards Mr. Padillow must obtain a COA for this cour t to review the district court’s denial of his § 2254 application. See 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the petitioner must make “a substa ntial showing of the denial of a constitutional right,” id. , § 2253(c)(2), and must show “that reasonabl e jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encourag ement to proceed further,” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). When the district court denied his cl aims on the merits, Mr. Padillow “must demonstrate that reasonable jurists would fi nd the district court’s assessment of the constitutional claims debatable or wrong.” Id. When the district court denied a claim on procedural grounds without reaching the underlying constitutional claim, Mr. Padillow must demonstrate “that jurists of reason would find it debatable whether the petition Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 67 states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.” Id. Our consideration of Mr. Padillow’s request for a COA mu st account for the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which requires “deferential treatment of state court decisions.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, when a state court has adjudicate d the merits of a claim, a federal district court cannot grant habeas relief on that cl aim unless the state court’s decision “was contrary to, or involved an unreasonable app lication 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). When the district court has denied § 2254 habeas relief on th e merits, we must determine as part of our COA analysis whether reasonable jurists could debate the co urt’s decision in light of AEDPA deference to the state court. See Miller-El v. Cockrell , 537 U.S. 322, 336 (2003).
B. Analysis of COA Application Mr. Padillow is not entitled to a COA b ecause reasonable jurist s would not debate whether the district court correctly d ecided the issues he seeks to appeal.
1. Claims Denied on Procedural Grounds The district court denied relief on claims 2 through 5 on proce dural grounds. “On habeas review, this court does not address issu es that have been defaulted in state court on an independent and adequate state pr ocedural ground, unless the petitioner can demonstrate cause and prejudice or a f undamental miscarriage of justice.” Harmon v. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 78 Sharp , 936 F.3d 1044, 1060 (10t h Cir. 2019) (quotations om itted). Here, Mr. Padillow did not appeal claims 2, 3, 4, or 5. Accordingly, they we re waived under Oklahoma law. 3 See Logan v. State , 293 P.3d 969, 973 (Okla. Crim. A pp. 2013) (“issues that were not raised previously on direct appeal, but wh ich could have been raised, are waived for further review”). The district court noted that Mr. Padillow could overcome this procedural bar by showing cause and actual prejudice or a fundamental miscarriage of justice but found Mr. Pa dillow had not done so. Mr. Padillow has not presented any meritori ous challenge to the district court’s procedural ruling. He asserts that claims 2, 3, and 5, whic h allege ineffective assistance of his trial attorneys, “give va lidity” to his claims of ineffectiveness of appellate counsel. Opening Br. & Appl. for COA at 3. But he fails to show ho w that assertion concerns the district court’s procedural ruling. He also asserts that claim 5—th at his trial attorneys were ineffective for failing to object to the admission of “crucial evidence”—constituted plain error affecting his substantial rights. See id. at 26-28. But he fails to support that assertion with any substantive argument. He does not even address claim 4. Although we must construe Mr. Padillow’s brief liberal ly, we “cannot take on the responsibility of

3 The district court acknowledged it was required to undertake a more thorough “adequacy” analysis of Mr. Pa dillow’s waiver of his ineff ective assistance claims. R. Vol. I at 263 (quotations omitted). It held that waiver was an adequate state procedural ground because (1) his trial attorneys and appellate counsel were different, and (2) the claims could have been resolved on the tria l record alone. See id at 263-64 (citing English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998))

. Mr. Padillow has not challenged this conclusion, and reas onable jurists would not debate it. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 89 serving as the litigant’s attorn ey in constructing arguments and searching the record.” See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). Reasonable jurists would not debate the correctness of the district court’s procedural ruling. We ther efore deny Mr. Padillow’s request for a COA on claims 2 through 5.
2. Claims Denied on the Merits The district court denied cl aims 1, 6, 7, and 8 on the merits. Mr. Padillow seeks a COA to appeal those rulings.

a. Claim 1 – Ineffective assist ance of appellate counsel We review Mr. Padillow’s ineffe ctive assistance claims under Strickland v. Washington , 466 U.S. 668 (1984) , which first requires a defendant to show that (1) counsel’s performance “f ell below an objective standard of reasonableness,” id. at 688, and (2) the deficient performance prejudiced the defense, id. at 692. The deficient performance prong requires a defendant to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687. The prejudice pron g requires a showing that “the re is a reasonable probability that, but for counsel’s unprofessional errors, th e result of the proceeding would have been different.” Id. at 694. The court reviews ineffective assistance claims with “a strong presumption that counsel’s conduct falls within the wide range of reasona ble professional assistance; that is, the defendant must overcome the presum ption that, under the circumstances, the challenged action might be consid ered sound trial strategy.” Id. at 689 (quotations Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 910 omitted). As Strickland noted, “[t]here are countless ways to provide effective assistance in any given case,” and “[e]ven the best crim inal defense attorneys would not defend a particular client in the same way.” Id. The court may address the two Strickland components of an ineffective assistance claim in any order, and need not address both if it concludes the defendant has failed to satisfy one. See id. at 697. A showing that a defendan t’s particular legal contention lacks merit necessarily establishes that counsel was not ineffective for failing to raise the issue. Davis v. Sharp , 943 F.3d 1290, 1299 (10th Cir. 2019). Finally, we must review the OCCA’s re solution of Mr. Pad illow’s ineffective assistance claims “through AE DPA’s deferential lens.” Frost v. Pryor , 749 F.3d 1212, 1225 (10th Cir. 2014); see also Lockett v. Trammell , 711 F.3d 1218, 1248 (10th Cir. 2013) (“[W]e review [the OCCA’s] analysis [o f ineffective assistance of counsel claims] under the considerable deference required by Strickland itself—in addition to AEDPA deference.”). Mr. Padillow alleged in his habeas petition th at he sent his appellate counsel a list of eight issues he wanted to include in his direct appeal:
1. There was insufficient evidence to support the charges;
2. The trial court erred in not determinin g witnesses requested by Mr. Padillow were unavailable;
3. The trial court wrongfully denied the testimony of Regina Johnson;
4. His trial attorneys never searched for vi deo of the medical examination of one of the victims;
5. His trial attorneys did not attemp t to find witness Regina Johnson; Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1011 6. During witness examinati ons, Mr. Padillow’s trial attorneys did not ask questions that he claims he had given them;
7. His trial attorneys insisted on a defens e theory that Mr. Padillow deemed “a total lie,” Opening Br. & A ppl. for COA at 17; and
8. His trial attorneys should have withdr awn after Mr. Padillow assaulted them, and the trial court should have appointe d him new counsel or allowed him to represent himself. Mr. Padillow contends his appellate counsel wa s ineffective because he raised none of these issues on direct app eal. In his Opening Brief and Application for COA, Mr. Padillow has abandoned issues 2 and 3. We address the remaining issues as follows. i. Issue 1 - Sufficiency of the evidence Mr. Padillow contends his appellate c ounsel was constitutionally ineffective by failing to assert insufficiency of the evidence. He is entitle d to relief on this ground only if “upon the record evidence a dduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 324 (1979). This standard “respects the jury’s responsibility to weigh the evidence and to draw reasonable inferences from th e testimony presented at trial.” Dockins , 374 F.3d at 939. In addition, the nature of a constituti onal sufficiency review by a habeas court is “sharply limited.” Wright v. West , 505 U.S. 277, 296 (1992). Thus, all of the evidence must be considered in the light most favor able to the prosecution, and the prosecution need not rule out every h ypothesis except guilt. Id. We have thoroughly reviewed the trial cour t record. It contains sufficient victim testimony and corroborating evidence to suppor t a guilty verdict agai nst Mr. Padillow on Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1112 all counts. Both victims identified Mr. Pa dillow as their assailant. They provided sufficient detail to satisfy the elements of the crimes charged. In addition, the victims’ mothers offered corroborating testimony. A reasonable jury could have found sufficient proof of guilt beyond a reasonable doubt. Ap pellate counsel was thus not constitutionally ineffective in choosing not to raise this issue. See Davis , 943 F.3d at 1299. ii. Issue 4 - Trial attorneys’ alle ged failure to search for video of the medical examination Mr. Padillow argues that appellate coun sel should have argued his trial attorneys were ineffective in failing to present to the jury video of the sexual assault nurse examination of the victim. But as the distri ct court noted, one of Mr. Padillow’s trial attorneys cross-examined th e nurse responsible for the examination and elicited inconsistencies between the nurse’s written repor t and the physical evidence contained in the sealed rape kit. Having done so, his a ttorneys decided not to introduce the video, which would have been cumulative of the nurs e’s cross-examination. This decision fell well within the bounds of sound trial strategy under Strickland

. iii. Issue 5 - Trial attorney s’ attempts to find Regina Johnson Mr. Padillow contends appellate coun sel should have a sserted ineffective assistance based on his trial attorneys’ failu re to find a witness named Regina Johnson. He alleges Ms. Johnson would ha ve testified that he was alone with one of the victims for a limited amount of time. Even assuming this assertion is tr ue, he has failed to show a reasonable probability that the trial result would have been different if Ms. Johnson had testified. See Strickland , 466 U.S. at 694. Indeed, if Ms . Johnson had testified in the way Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1213 Mr. Padillow claims, she would have helped to establish that he was alone with the victim, which would seem to bolster th e prosecution’s case. Appellate counsel reasonably chose not to raise this issue. iv. Issues 6 and 7 - Defense strategy Mr. Padillow argues his appellate counse l should have argue d that his trial attorneys were ineffectiv e for failing to ask any of 200 ques tions he says he gave them for witness examinations (issue 6), and that his trial attorneys pr esented a defense theory that Mr. Padillow deemed “a total lie” (issue 7). Opening Br. & Appl. for COA at 17. Neither claim holds water. First, Mr. Padillow’s asserts that his a ttorneys declined to use any of his 200 questions, but he has not iden tified a single proposed question that they failed to ask. How to conduct witness examinations lies at the heart of trial strategy, see Boyd v. Ward , 179 F.3d 904, 915 (10th Cir. 1999)

. Mr. Padillow has not overcom e the presumption that the witness examinations conducted by his atto rneys were part of a sound trial strategy. Strickland , 466 U.S. at 689. Second, the trial attorneys’ defense theory was premis ed on the testimony of a DNA expert who admitted that there were a lternative explanations for the physical evidence presented by the prosecu tion. Mr. Padillow characteriz es this theory as “a lie,” but he fails to explain how the defens e theory was objectively unreasonable. See Roe v. Flores-Ortega , 528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”). Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1314 In short, Mr. Padillow has not overcome the “strong presumption” that his trial attorneys’ decisions were sound strategy that fell within a wide range of reasonable professional assistance. See Strickland , 466 U.S. at 689. Appellate counsel again reasonably chose not to raise these issues. v. Issue 8 - Trial attorneys’ failu re to withdraw after Mr. Padillow’s attack and the trial court’s denial of new counsel Mr. Padillow asserts that his appellate c ounsel should have argued on appeal that his trial attorneys were constitutionally in effective for failing to withdraw from representation after Mr. Padillow’s attack on Mr. Cagle. He cites no supporting authority. Also, the trial transc ript completely undermines this argument. It reflects that shortly after the attack, Mr. Lee, his ot her attorney, performed professionally and competently, including presentin g a forceful closing argument on Mr. Padillow’s behalf. We reject Mr. Padillow’s implicit suggestion th at his attorneys “[were] not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland , 466 U.S. at 687. The trial transcript demonstrates the opposite. For substantially the same reasons, we reje ct Mr. Padillow’s related assertion that the trial court erred by not appointing ne w attorneys after M r. Padillow attacked Mr. Cagle. A trial court’s determination re garding substitution of co unsel is subject to the abuse of discretion standard, see United States v. Mullen , 32 F.3d 891, 895 (4th Cir. 1994), and Mr. Padillow has not shown that th e trial court abused its discretion here. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1415 Mr. Padillow has failed to make “a subs tantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). His appellate counsel reasonably chose not to raise this issue.
* * * * In sum, reasonable jurists would not de bate the district court’s denial of Mr. Padillow’s arguments that his appellate counsel provided ineffe ctive assistance. See Miller-El , 537 U.S. at 336. We theref ore deny a COA on Claim 1. b. Claim 6 – Denial of evidentiary hearing Mr. Padillow argues the state trial court sh ould have held an evidentiary hearing on his petition for post-convicti on relief. “In conducting habeas review, a federal court is limited to deciding whether a co nviction violated the Constituti on, laws, or treaties of the United States.” Estelle v. McGuire , 502 U.S. 62, 68 (1991). The district court rejected Mr. Padillow’s claim because “[t]here is no c onstitutional requirement that states provide a criminal defendant with any fo rm of collateral review.” R. Vol. I at 270-71 (quotations omitted). We agree. Mr. Padillow’s claim th at he was entitled to a hearing in Oklahoma state court is not cognizable on federal habeas review. See Sellers v. Ward , 135 F.3d 1333, 1339 (10th Cir. 1998). We therefore deny a COA on this claim.

c. Claim 7 – Mr. Padillow’s re moval from the courtroom Mr. Padillow claims the trial court violat ed his Sixth Amendment rights under the Confrontation Clause when it removed him from the courtroom after he assaulted his counsel. A criminal defendant has a right to be present in the courtroom at every stage of his trial, Illinois v. Allen , 397 U.S. 337, 338 (1970), but that right is not absolute, id. at Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1516 343. “[J]udges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to m eet the circumstances of each case.” Id. “[T]he exclusion of a defendant from a trial proceedi ng should be consider ed in light of the whole record.” United States v. Gagnon , 470 U.S. 522, 526-27 (1985). Applying the foregoing case law, the OC CA held that the trial court acted well within its discretion under the circumstan ces and that no Sixth Amendment violation occurred. After undertaking a thorough re view of the record of the state court proceedings, the district court concluded that the OCCA’s findings were not contrary to or an unreasonable application of relevant Supreme Court case law. Our own review of the record confirms th e conclusions of the district court and the OCCA. Physically attacking one’s own counsel in open court is the sort of disruptive behavior contemplated by Allen to justify removal. And b ecause the trial court removed him only at the conclusion of the evidence, Mr. Padillow was present at and participated in most of his trial—including voir di re, opening statements, the prosecution’s presentation of evidence, and the telephonic tes timony of the defense’s lone witness. He missed only the jury instruction conference, cl osing arguments, and the jury’s verdict. Mr. Padillow was permitted to be present for his sentencing less than two weeks after the trial concluded, consistent with Allen ’s direction that “[o]nce lost, the right to be present can . . . be reclaimed as soon as the defe ndant is willing to con duct himself with the decorum and respect inherent in the concep t of courts and judicial proceedings.”
397 U.S. at 343. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1617 In addition, Mr. Padillow’s removal from the courtroom culminated a long history of disruptive conduct. Mr. Padillow repeat edly demonstrated an inability to get along with his lawyers at numerous pre-trial hearin gs. Indeed, Mr. Padillo w went through four attorneys from the Tulsa County public defender’s office. Each withdrew due to conflicts with Mr. Padillow or at Mr. Pa dillow’s request. The trial c ourt then appointed Mr. Cagle and Mr. Lee, private attorneys who frequent ly accepted court appo intments when the public defender had a conflict. Months before trial, Mr. Pa dillow engaged in abusive and threatening conduct toward Mr. Cagle and Mr. Lee when they re fused to present a particular theory pressed by Mr. Padillow. His assault on Mr. Cagle capped a long history of failing to ge t along with his counsel. Mr. Padillow also continuously vacilla ted between wanting to represent himself and requesting counsel. Two months before tr ial, he asked to represent himself. At the conclusion of a hearing on that request, he decided to continue with Mr. Cagle and Mr. Lee. Approximately a month later, he changed his mind again and requested self-representation, which the trial court reluctan tly allowed. On the first day of trial in the middle of voir dire, Mr. Padillow reques ted that Mr. Cagle and Mr. Lee step in to represent him. Finally, after the prosecu tion presented its case and just before Mr. Padillow was to testify, he again asked to represent himself based on disagreements with his lawyers. The tria l court denied this request. 4

4 The record reflects that the trial court was patient, respectful, and methodical in its efforts to accommodate M r. Padillow’s changing positions on representation and to ensure that his constitutional rights were carefully guarded. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1718 Considering “the whole record,” Gagnon , 470 U.S. at 527, including Mr. Padillow’s assault on an officer of the court and his long hi story of problematic conduct, we agree that the state trial court acted well within its discretion to remove Mr. Padillow from the courtroom. Reasonable jurists would not debate the district court’s resolution of this issue, Slack , 529 U.S. at 484, especially under the AEDPA deference accorded to the OCCA’s ruling, see Miller-El , 537 U.S. at 336. We therefore deny a COA. d. Claim 8 – Mr. Padillow’s wai ver of the right to testify Mr. Padillow also claims the trial cour t violated his Fifth Amendment right to testify by removing him from the courtroom before his testimony. As with the right to be present in the courtroom, the right to te stify can be waived through “contumacious conduct.” United States v. Nunez , 877 F.2d 1475, 1478 (10th Cir. 1989) (quotations omitted). We agree with the OCCA and the di strict court that by ch oosing to physically attack his own counsel just seconds before he was to take the witness stand, Mr. Padillow waived his right to testify. Reasonable jurist s would not debate this ruling. We therefore deny a COA on this issue. Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 1819 III. CONCLUSION We deny Mr. Padillow’s request for a C OA on all issues and di smiss this matter. We deny his request to proceed ifp

.
Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 21-5064 Document: 010110691410 Date Filed: 06/01/2022 Page: 19