UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

LOGAN ADAM DEATON, 

 Petitioner - Appellant, 

v. 

JIM FARRIS, Warden, 

Respondent - Appellee. 

No. 16-6204 

(D.C. No. 5:13-CV-01052-R) 

(W.D. Oklahoma) 

ORDER DENYING 

CERTIFICATE OF APPEALABILITY*

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges. 

 

 Logan Adam Deaton, an Oklahoma state prisoner proceeding pro se, applies for a 

certificate of appealability (COA) to challenge the district court’s order denying his 

motion for writ of habeas corpus brought under 28 U.S.C. § 2254. He also seeks 

permission to proceed in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we deny Mr. Deaton’s application for a COA and dismiss the appeal. In addition, 

we grant his motion to proceed IFP. 

 *

This order is not binding precedent, except under the doctrines of law of the case, 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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 17, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND

 On December 4, 2008, a jury found Mr. Deaton guilty of First Degree Rape, and 

the trial court sentenced him to twenty-five years’ imprisonment. The Oklahoma Court of 

Criminal Appeals (OCCA) affirmed Mr. Deaton’s conviction on direct appeal in a 

decision entered on September 22, 2010. 

 On May 6, 2011, Mr. Deaton filed an Application for Post-Conviction Relief. On 

February 15, 2012, the state trial court denied Mr. Deaton’s claims for relief, with the 

sole exception that it granted him an evidentiary hearing on a claim based on newly 

discovered evidence. But after conducting that hearing on April 5, 2012, the state trial 

court denied relief on that claim as well, on July 13, 2012. The OCCA affirmed the state 

trial court’s denial of post-conviction relief on June 6, 2013. 

 On October 2, 2013, Mr. Deaton filed a pro se application for a writ of habeas 

corpus in the federal district court under 28 U.S.C. § 2254. Mr. Deaton subsequently 

amended the application, raising nine claims: (1) prosecutorial misconduct deprived him 

of a fundamentally fair trial; (2) the state trial court deprived him of the right to present a 

defense by limiting cross-examination of the victim; (3) admission of unduly prejudicial 

photographs deprived him of a fundamentally fair trial; (4) failure to properly instruct the 

jury on the elements of rape deprived him of a fair trial; (5) judicial misconduct deprived 

him of a fair trial; (6) trial counsel performed ineffectively by failing to seek a change in 

venue; (7) appellate counsel performed deficiently on direct appeal by failing to raise an 

ineffective assistance of trial counsel claim based on the decision to call Mr. Deaton as a 

witness in his own defense; (8) newly discovered evidence requires reversal of his 
3 

conviction; and (9) appellate counsel performed ineffectively by failing to raise certain 

unidentified issues on direct appeal. The district court ordered the state to file a response, 

which the state filed on March 21, 2014. The district court then referred the matter to the 

magistrate judge for initial review. 

 The magistrate judge issued a thirty-two page Report and Recommendation 

(R&R), suggesting that the application be denied on the merits on all claims. The R&R 

first determined that all nine claims in the application had been fully exhausted, either on 

direct appeal or post-conviction proceedings in the state court. The R&R then considered 

the merits of each claim and concluded that Mr. Deaton had failed to demonstrate that the 

OCCA had made determinations on the issues that were contrary to or an unreasonable 

application of federal law. The district court adopted the R&R and accordingly denied 

Mr. Deaton’s application for habeas relief, and it entered final judgment on June 21, 

2016. Neither the district court order nor the judgment address whether Mr. Deaton is 

entitled to a COA. On appeal, Mr. Deaton has abandoned his third claim—that the 

admission of unduly prejudicial photographs deprived him of a fundamentally fair trial—

but he seeks a COA on all his other claims. 
4 

DISCUSSION

 To appeal from the district court’s denial of habeas relief under 28 U.S.C. § 2254, 

Mr. Deaton must first obtain a COA from this court. See 28 U.S.C. § 2253(c)(1)(A) 

(providing that “[u]nless a circuit justice or judge issues a certificate of appealability, an 

appeal may not be taken to the court of appeals from . . . the final order in a habeas 

corpus proceeding in which the detention complained of arises out of process issued by a 

State court”). And we will issue a COA “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” Id. § 2253(c)(2). To meet that burden, 

Mr. Deaton must establish that “reasonable jurists could debate whether (or, for that 

matter, agree that) the petition 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, 483–84 (2000) (internal quotation marks omitted). Applying 

that standard to each of Mr. Deaton’s claims, we conclude that he cannot meet that 

burden. Accordingly, we deny his request for a COA and dismiss this appeal. 

A. Prosecutorial Misconduct 

Mr. Deaton identifies three separate bases for his claim of prosecutorial 

misconduct. First, he contends that the state prosecutor introduced evidence of a prior 

felony conviction that the state trial court had ruled inadmissible in a pre-trial ruling in 

limine. Second, he argues that the prosecutor improperly appealed to the jury’s sympathy 

for the victim during closing argument. And third, he argues it was prosecutorial 

misconduct for the state prosecutor to “consol[e] the alleged victim and then parade[] her 

in front of the jury.” In a summary opinion on direct appeal, the OCCA disagreed, 
5 

holding that the state “trial court’s admonitions to the jury cured the alleged errors” and 

their cumulative effect did not deprive Mr. Deaton of a fair trial. On habeas review, the 

magistrate judge considered the same issues in the R&R, albeit in more depth, and 

concluded Mr. Deaton had failed to demonstrate that the OCCA’s determination was 

contrary to or an unreasonable application of clearly established federal law. 

In seeking a COA from this court, Mr. Deaton claims that “[t]his conduct, when 

viewed in the whole, completely prejudiced the Petitioner, denied him a fair trial, and the 

District court’s decis[]ion to the contrary is unreasonable.” We disagree. Petitioners 

claiming a violation of their constitutional right to a fair trial must show that the 

prosecution’s conduct “so infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 

(1974). This requires an “examination of the entire proceedings” in the case, id., and the 

court must take “notice of all the surrounding circumstances, including the strength of the 

state’s case.” Patton v. Mullin, 425 F.3d 788, 811 (10th Cir. 2005). 

First, as to the prosecution’s question regarding Mr. Deaton’s prior child abuse 

conviction, there is a lingering question whether it was even inappropriate, given that (1) 

Mr. Deaton placed his credibility at issue, and (2) the state trial court ruled in a post-trial 

motion that “the State was entitled to impeach with th[e] prior conviction.” Moreover, 

Mr. Deaton never responded to the question, and the trial court felt a curative instruction 

would suffice—a determination which is entitled to “special respect.” Arizona v. 

Washington, 434 U.S. 497, 510 (1978). In seeking a COA from this court, Mr. Deaton 

argues that “common sense makes us aware that the jury heard this information and what 
6 

they heard cannot simply be unheard.” But he fails to explain why the evidence was 

inadmissible, or to demonstrate any prejudice after the curative instruction was given, 

which is particularly problematic in light of this court’s recognition that “juries are 

presumed to follow curative instructions.” United States v. Morgan, 748 F.3d 1024, 1042 

(10th Cir. 2014). 

Second, Mr. Deaton claims the prosecutor’s comments during closing arguments 

were improper because they “not only appealed to the sympathy of the alleged victim, but 

these same comments were poised in such a way as to be presented as personal beliefs of 

guilt by the State.” Specifically, the prosecutor commented that the victim required 

counseling and that the jury should consider a minimum of 25 years on each count. But, 

as the magistrate judge explained, the defense never objected, and these comments were a 

limited, and reasonable, response to the defense attorney’s own call to sympathy for Mr. 

Deaton. Defense counsel argued in closing that Mr. Deaton was just a “youngster,” that if 

found guilty Mr. Deaton would have to live in a cell the size of a bathroom, and that Mr. 

Deaton would have to register as a sex offender with that “scarlet letter the rest of [his] 

life.” See Matthews v. Workman, 577 F.3d 1175, 1189 (10th Cir. 2009) (“[I]f the 

prosecutor’s remarks were ‘invited,’ and did no more than respond substantially in order 

to ‘right the scale,’ such comments would not warrant reversing a conviction.” (quoting 

United States v. Young, 470 U.S. 1, 13 (1985))). 

And finally, Mr. Deaton claims the prosecution “paraded [the victim] in front of 

the jury” in the hallway during a break in the trial in an attempt to gain the jurors’ 

sympathy. The prosecution did lead the victim to a sheltered area of the hallway during 
7 

the break, but Mr. Deaton has presented no evidence that any juror actually saw this 

occur. And even assuming the jurors did see it occur, the trial court gave a sufficient 

curative instruction, and Mr. Deaton has not demonstrated how this isolated incident 

rendered his trial fundamentally unfair. 

In sum, reasonable jurists could not debate that the petition should have been 

resolved differently on this issue. Mr. Deaton has failed to demonstrate how the 

prosecution’s conduct prejudiced the outcome of the trial, especially in light of the 

defense’s own comments and the state trial court’s curative instructions. Because Mr. 

Deaton has failed to make a substantial showing of the denial of a constitutional right, we 

deny a COA on this claim. 

B. Sixth Amendment Confrontation Clause 

Next, Mr. Deaton argues that the trial court “prevent[ed] the defense from eliciting 

information from the alleged victim concerning her mental state after the alleged crime,” 

in violation of his Sixth Amendment right to confrontation. “The Sixth Amendment 

provides a right to confrontation, but trial judges can still impose reasonable limits on 

cross-examination.” In re Harper, 725 F.3d 1253, 1260 (10th Cir. 2013) (citing Delaware 

v. Van Arsdall, 475 U.S. 673, 679 (1986)). As the magistrate judge acknowledged, 

“[t]hese limits include relevance and materiality.” Id. Mr. Deaton claims the trial court 

erroneously precluded the defense from asking about the victim’s mental state and 

substance abuse in the time period after the alleged rape, including the fact that she had 

been admitted to a mental institution. The OCCA considered this claim on direct appeal 

and summarily concluded the state trial court did not abuse its discretion in limiting the 
8 

cross-examination. On habeas review, the magistrate judge rejected the claim, noting that 

Mr. Deaton was allowed to question the victim regarding many subjects bearing on her 

state of mind, including her prior substance abuse, self-harm, and mental illness. 

In seeking a COA, Mr. Deaton cursorily concludes that the questioning was 

relevant, but he fails to cite to any legal precedent or other authority suggestive that the 

state trial court’s limitations constituted an abuse of discretion, much less that they 

violated his Sixth Amendment right to confrontation. We therefore deny a COA on this 

claim. 

C. Jury Instructions 

Mr. Deaton’s third claim is that the state trial court did not properly instruct the 

jury on the elements of the crime of rape. Specifically, he argues “[t]he instruction given 

by the state court allowed the jury to find the Petitioner guilty of rape where ‘force, and 

violence was used against the victim,” but that the instruction should have “include[d] the 

element of consent.” On direct appeal, the OCCA determined that “the giving of the 

Uniform Instructions on the elements of rape was sufficient to encompass [Mr. Deaton’s] 

proffered defense of consent. The elements of rape specifically exclude the possibility 

that the intercourse was consensual, and the instruction is substantially in the language of 

the rape statutes.” The magistrate judge agreed, concluding that Mr. Deaton was not 

entitled to habeas relief based on any alleged error in the state trial court’s interpretation 

of state law, and that Mr. Deaton had failed to show that the failure to include a separate 

element of consent rendered the trial fundamentally unfair. 
9 

In seeking a COA from this court, Mr. Deaton again fails to demonstrate how the 

instruction denied him his right to a fair trial, so we deny a COA on this claim as well. 

“In habeas proceedings, we have a limited role in evaluating jury instructions. We only 

look to determine if instructional errors ‘had the effect of rendering the trial so 

fundamentally unfair as to cause a denial of a fair trial in a constitutional sense.’” White 

v. Medina, 464 F. App’x 715, 719 (10th Cir. 2012) (quoting Shafer v. Stratton, 906 F.2d 

506, 508 (10th Cir. 1990)). As the magistrate judge explained, the instruction in this case 

required a showing that “force/violence was used against the victim,” and should the jury 

have determined the encounter to be consensual, no force would have been present. See 

United States v. Martin, 528 F.3d 746, 752 (10th Cir. 2008) (noting under a similar 

federal rape statute that “the government was required to prove that force or serious 

threat—and therefore not the victim’s consent—was the cause of the sex act. This is all 

the proof of non-consent that the statute demands”). Despite Mr. Deaton’s arguments 

otherwise, the State was not required to tailor the instructions to “the circumstances of the 

case.” 

D. Judicial Misconduct 

Next, Mr. Deaton casts his prosecutorial misconduct claim in a new light—that is, 

he claims it was judicial misconduct for the state trial court not to declare a mistrial after 

the prosecution asked Mr. Deaton about his prior child abuse conviction. The state trial 

court considered this claim during postconviction proceedings, deeming it to be 

procedurally barred under principles of waiver or res judicata, a ruling from which Mr. 

Deaton did not appeal. The magistrate judge considered the issue on habeas review, 
10 

concluding that “Petitioner’s attempt to recast his prosecutorial misconduct claim as an 

independent claim of judicial misconduct is futile” and that the record did not support a 

claim of judicial bias. See McPherson v. Miers, 7 F. App’x 845, 849 (10th Cir. 2001) 

(“[A]lleged violations of state codes of conduct are not cognizable in federal habeas.” 

(citing Estelle v. McGuire, 502 U.S. 62, 67 (1991))). We agree, and deny a COA on this 

claim. 

E. Ineffective Assistance of Trial and Appellate Counsel 

Mr. Deaton also seeks a COA on issues stemming from the alleged ineffective 

assistance of his trial and appellate counsel. To demonstrate that his Sixth Amendment 

right to the effective assistance of counsel was violated, Mr. Deaton must show both 

deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). And 

“[t]he very focus of a Strickland inquiry regarding performance of appellate counsel is 

upon the merits of omitted issues.” Milton v. Miller, 744 F.3d 660, 670 (10th Cir. 2014) 

(internal quotation marks omitted). In claiming ineffective assistance of trial and 

appellate counsel, Mr. Deaton raises several arguments. First, he claims his trial counsel 

failed to seek a change of venue, given that the victim’s father is an attorney who 

regularly appears in the same district where Mr. Deaton’s trial was held; Mr. Deaton 

alleged that the victim’s father is corrupt and has close ties with the prosecution and/or 

the judge, rendering a fair trial impossible. He also claims his appellate counsel was 

ineffective by not urging on appeal that his trial counsel was ineffective for advising Mr. 

Deaton to testify, in light of the chance the prior child abuse conviction might come in. 
11 

And finally, he argues his appellate counsel failed to raise the judicial misconduct claim 

(discussed above) during the direct appeal. 

The OCCA considered these claims during postconviction proceedings, 

concluding (1) appellate counsel had raised the issue of judicial misconduct; and (2) the 

claims of ineffective assistance of trial counsel did not present issues of “appellate merit,” 

so appellate counsel was not ineffective for failing to raise them on appeal. The 

magistrate judge reviewed these issues anew, concluding that AEDPA deference was 

warranted on all claims except for the claim that appellate counsel had failed to raise the 

issue of judicial misconduct on appeal. In the magistrate judge’s view, the determination 

that judicial misconduct had been raised on direct appeal was not supported by the 

record, so it reviewed the issue de novo. Nonetheless, the magistrate judge recommended 

denying all of Mr. Deaton’s claims related to the ineffective assistance of counsel. As to 

the change of venue issue, the judge determined the claim was frivolous because it was 

premised on pure speculation: Mr. Deaton failed to “support the allegations about the 

victim’s father with any facts.” As to trial counsel’s advice that Mr. Deaton testify, the 

judge determined Mr. Deaton failed to show either deficient performance or prejudice, 

and it cataloged all of the steps trial counsel undertook to prevent the child abuse 

conviction from coming in. And finally, in reviewing the judicial misconduct claim de 

novo, the judge determined that the substance of the claim was without merit. 

 We turn first to the claim that trial counsel was ineffective for advising Mr. 

Deaton to testify. In seeking a COA, Mr. Deaton claims his attorney did not understand 

the law and directed his client in the wrong direction. Moreover, he claims prejudice is 
12 

clear because the case came down to a credibility contest, and the child abuse allegation 

“certainly would tip the scales toward a verdict of guilt.” But as the magistrate judge 

aptly explained, counsel was careful in seeking a pretrial in limine ruling before advising 

Mr. Deaton to testify, and counsel fought strenuously thereafter by objecting to the 

prosecutor’s question and by seeking a mistrial. And as to prejudice, Mr. Deaton fails to 

demonstrate how the result of the proceeding would have been different had trial counsel 

not advised him to testify, which is a particularly glaring omission in light of Mr. 

Deaton’s concession that it all “came down to a credibility contest.” Instead of addressing 

the potential of a different outcome had he not testified, Mr. Deaton merely reiterates that 

it was error for the prior conviction to be admitted—a claim we have addressed and 

rejected above. 

 As to Mr. Deaton’s ineffective assistance of appellate counsel claims, Mr. Deaton 

fails to even remotely address the substance of the claims in his application for a COA. 

He claims only that “should this court find merit in the omitted claims, [then ineffective 

assistance of appellate counsel] should and must be found.” Regardless, we agree with 

the magistrate judge that Mr. Deaton’s judicial misconduct claim is without merit and 

that his venue claim is without any factual support. Accordingly, Mr. Deaton has failed to 

make a substantial showing of the denial of a constitutional right, and we therefore deny a 

COA on all of his ineffective assistance of counsel claims. 

F. Newly Discovered Evidence 

Finally, Mr. Deaton claims there was newly discovered evidence presented during 

postconviction proceedings that would have altered the outcome of the trial had it been 
13 

presented. In essence, he raises a standalone actual innocence claim. But the Supreme 

Court has concluded that “[c]laims of actual innocence based on newly discovered 

evidence have never been held to state a ground for federal habeas relief absent an 

independent constitutional violation occurring in the underlying state criminal 

proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); Case v. Hatch, 731 F.3d 

1015, 1036 (10th Cir. 2013) (“[A]s yet, it is an open question whether such a federal right 

exists.”). The magistrate judge flagged this problem in recommending denial of Mr. 

Deaton’s habeas petition, but Mr. Deaton fails to address the issue in his application for a 

COA before this court. He does not tie his actual innocence claim to ineffective 

assistance of counsel or some other constitutional challenge. 

Moreover, even were we to consider the evidence, we agree with the magistrate 

judge that it was cumulative evidence of impeachment. Mr. Deaton claims the testimony 

of two witnesses—Nicole Gregory and Alice Katona—suggested he was innocent. Ryan 

Gregory—Nicole’s brother—shared an apartment with the victim. Reportedly, the victim 

told Ms. Gregory that Ryan Gregory had raped her on a previous occasion, and Ms. 

Gregory testified she thought her brother had again raped the victim on the night in 

question. She also challenged the victim’s credibility, claiming the victim’s allegations of 

rape were “just happening way too much. Everyone is forcing her to have sex with 

them.” But the victim never told Ms. Gregory that Mr. Deaton did not rape her on the 

night in question. 

Alice Katona, who is the grandmother of Ryan Gregory and Mr. Deaton, also 

testified. She claimed Ryan Gregory had admitted to beating up the victim on the night in 
14 

question and that she had heard about Ryan Gregory’s violence toward the victim and the 

victim’s substance abuse problems. At no time did Ryan Gregory admit to raping the 

victim. 

Even were we to credit the witnesses’ testimony, “[t]he evidence which [Mr. 

Deaton] asserts as newly discovered evidence barely aids his case and is merely 

impeaching evidence that would not cause a rational person to doubt [his] guilt.” Clayton 

v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999), holding modified by McGregor v. 

Gibson, 248 F.3d 946 (10th Cir. 2001). We therefore deny a COA on Mr. Deaton’s actual 

innocence claim. 

G. IFP Status 

As a final matter, Mr. Deaton has filed a motion to proceed IFP on appeal. 

Prisoners seeking IFP status in a habeas action must demonstrate “a financial inability to 

pay the required fees and the existence of a reasoned, nonfrivolous argument on the law 

and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 

115 F.3d 809, 812 (10th Cir. 1997). We agree that Mr. Deaton has demonstrated a 

financial inability to pay and that his arguments are not frivolous. Accordingly, Mr. 

Deaton’s motion to proceed IFP on appeal is granted. 
15 

CONCLUSION 

Because Mr. Deaton fails to make a substantial showing of the denial of a 

constitutional right, we DENY his request for a COA and DISMISS the appeal. We also 

GRANT Mr. Deaton’s motion to proceed IFP on appeal. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge