UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RODNEY DOUGLAS EAVES, Petitioner - Appellant,

v. COLORADO DEPA RTMENT OF CORRECTIONS; THE ATTORNEY GENERAL STATE OF COLORADO, Respondents - Appellees. No. 19-1452 (D.C. No. 1:18- CV-02619-CMA) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ Rodney Douglas Eaves, a Colorado state prisoner proceeding pro se, seeks a certificate of appealability (“C OA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of pr ocess issued by a State court”). He also

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 13, 2020 Christopher M. Wolpert Clerk of Court2 seeks leave to proceed in forma pauperis (“ ifp ”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny both re quests and dismiss this matter. 1
I. BACKGROUND Mr. Eaves is serving a 30-year se ntence based on his convictions for aggravated robbery and other crimes. Afte r his unsuccessful app eal to the Colorado Court of Appeals (“CCA”), he applied fo r federal habeas re lief under 28 U.S.C. § 2254, asserting 13 claims. The district court directed the Re spondents to file a pre-answer response addressing timeliness, exhaustion, and procedural default; and it ordered that Mr. Eaves could file a reply. After receiv ing these filings, the court dismissed as procedurally defaulted (1) the Fourteenth Amendment components of claims one and two and (2) claims six throug h thirteen in their entirety. Mr. Eaves moved to amend his reply to show that prejudice and miscarriage of justice should preclude procedural default of these claims. The cour t construed the motion as a request for review of its di smissal order, and denied it because Mr. Eaves was already afforded an opportunity to ma ke this showing in his reply. In a separate order, the court denied relief on the remaining five claims and denied a COA.

1 Because Mr. Eaves is pro se, we construe his fi lings liberally, but we do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (1 0th Cir. 2008). He is subject to the same procedural rules governing other litigants. See United States v. Green , 886 F.3d 1300, 1307-08 (10th Cir. 2018).3 II. DISCUSSION A. COA Requirement and AEDPA To review a § 2254 application, we must grant a COA. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). To receive a COA, an applicant must make a “substantial showi ng of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,” Slack v. McDaniel , 529 U.S. 473, 484. When the dist rict court denied a habeas claim on procedural grounds, the applicant must also show “that jurists of reason would find it debatable whether the district court wa s correct in its procedural ruling.” Slack , 529 U.S. at 484; accord Dulworth v. Jones , 496 F.3d 1133, 1137 (10t h Cir. 2007). Thus, if an applicant cannot make a showing on th e procedural issue, we need not address the constitutional question. See Slack , 529 U.S. at 485. Under the Antiterrorism and Effective De ath Penalty Act of 1996 (“AEDPA”), when a state court has adjudicated the meri ts of a claim, a federal district court cannot grant habeas relief on that claim unless the state court’s decision “was contrary to, or involved an unreasonable a pplication of, clearly established Federal law, as determined by the Supreme C ourt of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of th e facts in light of the evidence presented in th e State court proceeding,” id. § 2254(d)(2). When the district court has denied habeas relief because the pe titioner failed to overcome AEDPA, our COA decision requires us to determine whether reas onable jurists could4 debate the court’s applic ation of AEDPA to the st ate court’s decisions. Miller-El , 537 U.S. at 336. B. Analysis In his brief to this court, Mr. Eaves cha llenges the district c ourt’s denial of his motion to amend his reply to the Responden ts’ pre-answer response. But as the district court noted, Mr. Eaves could have made his arguments in his reply brief. No reasonable jurist would debate that the district court ac ted within its discretion. See Pittman v. Fox , 766 F. App’x 705, 721 (10th Cir. 2019) (unpublished) (reviewing for abuse of discretion the denial of a habeas petitioner’s motion fo r reconsideration of district court order). 2 We deny a COA on this issue. Mr. Eaves also challenges th e court’s rulings on each of the claims that were not procedurally defaulted. Before turnin g to those claims, we note that Mr. Eaves repeatedly argues that the CCA did not addres s his claims in whole or in part. Aplt. Br. at 6, 8, 10, 11, 12. If that were so , he would not need to meet the demanding

2 See 10th Cir. R. 32.1 (“U npublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. Mr. Eaves’s arguments in his brief to th is court are unavailing. He argues that when the CCA struck his original 88-page brief and ordered him to file a 45-page brief, the CCA did not tell him he needed to “concisely present his claims,” including those the district court deem ed procedurally barred. Ap lt. Br. at 3. But federal habeas applicants must exhaust their ar guments in the state courts, 28 U.S.C. § 2254(b)(1), and Mr. Eaves does not contend here that he did so in the brief reviewed by the CCA. Mr. Eave s asserts that the district court “misconstrued” his motion and cites Fed. R. Civ. P. 15(a)(2) and Foman v. Davis , 371 U.S. 178 (1962). Aplt. Br. at 4. But Rule 15(a)(2) and Foman concern amendment of pleadings, not whether a litigant may f ile an amended brief to contest an order.5 AEDPA requirements on federal habeas review. See Stouffer v. Duckworth , 825 F.3d 1167, 1179 (10th Cir. 2016) (“[I]f the state court di d not decide the claim on the merits, the stringent princi ples of deference under . . . § 2254 are inapplicable.” (quotations omitted)). But Mr . Eaves is mistaken. The dist rict court showed that the CCA addressed each claim, in most inst ances quoting from the CCA’s decision. But even if the CCA did not fully address one or more of Mr. Eaves’s claims, they are still subject to AE DPA review. Where, as here, “a federal cl aim has been presented to a state court and the state cour t has denied relief, it may be presumed that the state court adjudi cated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Johnson v. Williams , 568 U.S. 289, 298 (2013) (quoting Harrington v. Richter , 562 U.S. 86, 99 (2011)). Mr. Eaves has not overcome this presump tion because he has not identified any “state-law procedural princi ples” or other “indication” s howing the state court did not resolve his claim. Id. (quoting Harrington , 562 U.S. at 99). We therefore review the claims under §§ 2254(d)(1) & (2) and conclude Mr. Eaves fails to show that reas onable jurists could debate the district court’s denial of relief. We therefore deny a COA on all of his claims. Fourth Amendment Search and Seizure Claim The district court denied Mr. Eaves’s Fourth Amendment claim alleging illegal searches and seiz ures because, under Stone v. Powell , 428 U.S. 465, 494 (1976), federal habeas relief may not be granted when the state ha s provided a full and fair opportunity to litigate the clai m, and Mr. Eaves has failed to show he was denied that6 opportunity. The record shows he filed motions to suppress, the state trial court held evidentiary hearings, and he raised his F ourth Amendment clai m on appeal. A COA is not warranted because re asonable jurists would not de bate the district court’s determination under Stone

. Fifth Amendment Claim – No Probable Cause Affidavit with Complaint The district court rejected Mr. Eave s’s argument that his Fifth Amendment rights were violated because the state trial court accepted the criminal complaint and information without a supporting affidavi t. The CCA, however, found that a supporting affidavit was filed in the trial court that su pported the complaint and information, and the district court, applying AEDPA und er § 2254(d)(2), held that Mr. Eaves failed to show this finding wa s based on an unreasonable determination of facts. See also United States v. Mechanik , 475 U.S. 66, 73 (holding conviction by the petit jury shows there was pr obable cause and renders h armless lack of probable cause for the indictment); United States v. Hillman , 642 F.3d 929, 936 (10th Cir. 2011). Mr. Eaves has not shown how reasonabl e jurists would debate this holding. We deny a COA. Sixth Amendment Claim – Speedy Trial Violation The district court denied habeas rel ief on Mr. Eaves’s sp eedy trial claim, concluding that he did not show that the CCA ’s affirmance of the trial court’s denial of the claim was contrary to or an unreasonable application of the Supreme Court’s decision in Barker v. Wingo , 407 U.S. 514 (1972). The dist rict court determined that Barker ’s four-factor test supported the CCA’s d ecision. For substa ntially the same7 reasons as stated by the distri ct court, we agree. Reasona ble jurists would not debate otherwise. We deny a COA. Fourteenth Amendment Claim – Right to Discovery The CCA rejected Mr. Eaves’s claim that he was entitled to discovery of a detective’s handwritten and voice-recorded not es when the detec tive testified they were identical to the t ypewritten notes that were provided. The district court said this ruling was consistent with California v. Trombetta , 467 U.S. 479 (1984), and Arizona v. Youngblood , 488 U.S. 51 (1988), and therefore Mr. Eaves could not overcome AEDPA review. The CCA also rejected Mr . Eaves’s contention that he was not afforded adequate opportunity to review AT&T records of GPS data. Although the prosecution did not provide these records in print form, it gave el ectronic copies to Mr. Eaves’s investigator and advisory counse l at least three times. The district court said that Mr. Eaves had failed to show the CCA’s determination of no discovery violation was contrary to or an unreasonable applicati on of clearly established Supreme Court law or was based on an unreasonable determination of facts. Because the district cour t’s determinations woul d not be debatable among reasonable jurists, we deny a COA on this issue. Sixth Amendment Claim – Ex clusion of Evidence on an Alternate Suspect Defense The CCA affirmed the trial court’s decision to quash Mr. Eaves’s subpoena for records related to an alleged alternative suspect because it was a “fishing expedition”8 that contravened state evidence rules and b ecause Mr. Eaves failed to state why he needed the information or how the evidence would connect th e suspect to the crime. It also affirmed the trial court’s decision to quash Mr. Eaves’s subpoenas to eight police officers who did not investigate hi s robbery case but investigated a case concerning a shooter, wher e both crimes involved a Ni ssan. The CCA relied on multiple grounds, including Mr . Eaves’s failure to show a non-speculative connection to the alternate suspect and the trial cour t’s determination that the evidence would unduly confuse the jury under Colorado Rule of Evidence 403. The district court said th e state courts concluded that Mr. Eaves’s subpoenas requested materials and testimony that were inadmissible under the state rules of evidence. It said Mr. Eave s had failed to show how th e exclusion of the evidence was contrary to or an unreasonable applica tion of clearly estab lished federal law or was based on an unreasonable determination of facts. 28 U.S.C. § 2254(d). In his brief to this court, Mr. Eaves has not made a “substantial showing of” how these state court rulings were a “den ial of a constitutional right,” 28 U.S.C. § 2253(c)(2), nor has he s hown how reasonable jurists w ould debate the district court’s rejection of this claim. We deny a COA.9 III. CONCLUSION We deny a COA, deny the request to proceed ifp , and dismiss this matter.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge