UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SAMUEL L. REED, Petitioner - Appellant,

v. SAM CLINE; ATTORNEY GENERAL OF KANSAS, Respondents - Appellees. No. 17-3173 (D.C. No. 5:16- CV-03208-DDC) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY

________________ _________________ Before HARTZ , HOLMES , and BACHARACH , Circuit Judges.

________________ _________________ Applicant Samuel L. Reed seeks a certific ate of appealability (COA) to appeal the denial of his application for relief under 28 U.S.C. § 2254 by the United States District Court for the District of Kansas. See 28 U.S.C. § 2253(c)(1 )(A) (requiring COA to appeal denial of relief unde r § 2254). We deny the reques t for a COA and dismiss this appeal.
In 2011 a Kansas state-c ourt jury convicted Applicant of attempted first-degree murder. His conviction was upheld on revi ew by the state appellate courts, and the United States Supreme Court de nied his petition for a writ of certiorari. He filed his timely but unsuccessful § 2254 app lication in October 2016. A COA will issue “only if the applicant has made a substantial showing of the FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 denial of a constitutional right.” Id. § 2253(c)(2). This st andard requires “a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should ha ve 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, 484 (2000) (interna l quotation marks omitted). In other words, the applicant mu st show that the district cour t’s resolution of the constitutional claim was either “debatable or wrong.” Id. The Antiterrorism and Effective Death Pe nalty Act of 1996 (AEDPA) provides that when a claim has been ad judicated on the merits in a st ate court, a federal court can grant habeas relief only if the applicant esta blishes that the state-court decision was “contrary to, or involved an unreasonable app lication of, clearly established Federal law, as determined by the Supreme Court of th e United States,” or “was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding.” 28 U. S.C. § 2254(d)(1), (2). As we have explained: Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusi on opposite to th at reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. Gipson v. Jordan , 376 F.3d 1193, 1196 (10th Cir. 2004 ) (brackets and internal quotation marks omitted). Relief is provided under the “unreasonable application” clause “only if the state court identifies the correct govern ing legal principle from the Supreme Court’s decisions but unreasonably app lies that principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation marks omit ted). Thus, a federal court may not grant3 relief simply because it concludes in its i ndependent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. See id. Rather, that application must have been unreasonable. See id. Therefore, if an applicant’s claims have been adjudicated on the merits in state court, “AEDPA’s deferential treatment of state court decisions must be incorporated into our consideration of [his] request for [a] COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Several of Applicant’s claims assert ine ffective assistance of trial counsel. To establish ineffective assistan ce, Applicant first has the bur den of overcoming “a strong presumption that counsel’s conduct falls with in the wide range of reasonable professional assistance,” Strickland v. Washington , 466 U.S. 668, 689 (19 84), by demonstrating that his counsel’s performance fell below “an objective standard of reasonableness,” id. at 688. Second, Applicant must demonstrate “t hat there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. We can consider the pe rformance and prejudice prongs in either order; if Applicant fails to meet his burden on one prong, we need not consider the other. See id. at 697. Three of Applicant’s claims concern Amos Becknell, Applicant’s purported victim. After Becknell told the prosecution at trial that he would not testify, the court requested “some direct feedback on the re cord as to his willin gness to testify.” State v. Reed , 352 P.3d 530, 534 (Kan. 20 15) (brackets omitted). Wh en the prosecution reported that Becknell was unwilling to enter the courtroom even for that purpose, Applicant’s trial counsel suggested emptying the courtroo m. The trial court then questioned Becknell4 in the courtroom, with only Ap plicant, counsel, and court personnel present. After Becknell explained that he would not testify, the trial court found Becknell unavailable as a witness and let the prosecution read into evidence Becknell’s prior testimony from a preliminary hearing. Applicant first compla ins that the closure of the cour troom violated his right to a public trial under the Sixth Amendment (as applied to the States under the Fourteenth Amendment). The Kansas Suprem e Court rejected this argument, saying that “the district judge’s inquiry into Becknell’s willingness to te stify was not a part of the prosecution in which [Applicant’s] Sixth Amendment right to a public trial was implicated.” Reed , 352 P.3d at 542. To prevail on this claim, Applicant must show th at this decision was contrary to, or unreasonably applied, United St ates Supreme Court precedent. He fails to do so. The one-page discussion of this argumen t in his appellate brief refers to five Supreme Court opinions, none of which establish that a c ourt violates a defendant’s public-trial rights by using closed-courtroom questioning mere ly to determine a witness’s availability. See Press-Enter. Co. v. Superior Court of California, Riverside Cty. , 478 U.S. 1, 10 (1986) (First Amendment right of public ac cess to criminal trials applies to preliminary hearings); Waller v. Georgia , 467 U.S. 39, 46–48 (1984) (closing entire suppression hearing to public can viol ate defendant’s public-trial right); Press-Enter. Co. v. Superior Court of California, Riverside Cty. , 464 U.S. 501, 510–11 (1984) (First Amendment right of access to criminal tr ials applies to voir dire of jury); Estes v. Texas , 381 U.S. 532, 534–35 (1965) (televising defendant’s tria l violated his Fourteenth Amendment due-process rights); In re Oliver , 333 U.S. 257, 2 72–73, 276–78 (1948)5 (violation of due process wher e one-person grand jury, procee ding in secret, charged a grand-jury witness with cont empt, convicted him, and sent enced him to prison). No reasonable jurist could debate that Applic ant met his § 2254(d) burden on this claim. 1 The two components of Applicant’s second cl aim are that the tr ial court erred in its unavailability finding because it failed to issue an order requiring Becknell to testify and that his trial counsel “was ineffective for failing to object to the trial judge’s determination that Becknell was unavailable.” R., Vol. I at 25 (capitalization omitted). The Kansas Supreme Court rejected both claims , ruling that the trial judge “did not abuse his discretion when he determined Beckne ll was unavailable” and that “[Applicant’s] claim that his trial counsel wa s ineffective for failing to object to that decision is without merit.” Reed , 352 P.3d at 544. With respect to the unavailability ruling, Applicant cites only decisions of this court and the Kansas Supreme Court. In our view they are distinguishable, or even contrary to his positi on; but, in any event, they are irrelevant to the inquiry under AEDPA. Applicant must show that the decision of the Kansas Supreme Court was contrary to, or an unreas onable application of, holdings of the United States Supreme Court. He gives us nothing to work on in that regard. No reasonable jurist could debate that he has satisf ied the AEDPA standard on that claim.

1 Applicant also asserts on appeal that his trial counsel was ineffective for failing to object to the purported denial of his public-t rial right. But he failed to make this argument in his § 2254 application, leaving it fo r his traverse in district court. That is insufficient to preserve an issue for appeal, see United States v. Lor , 706 F.3d 1252, 1256 (10th Cir. 2013) (applying rule in ca se arising under 28 U.S.C. § 2255); Thompkins v. McKune , 433 F. App’x 652, 658–60 (10th Cir. 2011 ) (applying rule in § 2254 context), so we need not address this in effective-assistance argument.6 Nor can Applicant prevail on the second co mponent of this claim. The Kansas Supreme Court, after upholding the trial c ourt’s decision that Becknell was unavailable, drew the natural conclusion th at Applicant’s trial counsel was not ineffective for failing to object to that decision (after all, a defe ndant is not prejudiced by counsel’s failure to raise an objection that would not succeed). Again, Applicant provides no contrary authority from the United States Supreme Cour t. No reasonable jurist could debate the district court’s rejection of this claim. Applicant’s third claim is that his tria l counsel “was ineffective in waiving [Applicant’s] Sixth [Amendment] right to confrontation” by not objecting to the prosecution’s offer of Becknell’s preliminary-hear ing transcript into ev idence. R., Vol. I at 28 (capitalization omitted). The Kansas Supr eme Court rejected this claim after first deciding that admission of the preliminary- hearing testimony did no t violate Applicant’s right to confrontation. See Reed , 352 P.3d at 544–45. Becau se there was no violation, counsel’s failure to object could not have prejudiced Applicant. See id. at 545. Applicant has failed to present any decision of the Un ited States Supreme Court that casts doubt on that logic or on the determination that the preliminary-hearing testimony was admissible. No reasonable jurist could debate the di strict court’s denial of this claim. Applicant’s final claim concerns the tes timony of Michael Price, who drove with Applicant to Becknell’s house before the shoo ting. Price entered into a plea agreement requiring him to testify against Applicant. At trial the prosecutor elicited from Price that the agreement required him to testify truthf ully and this requirement was why he was “testifying . . . truthfully.” Id. (internal quotation marks om itted). Applicant argues that7 the prosecutor had improperly vo uched for Price’s veracity an d Applicant’s attorney was ineffective in not objecting to this vouching. The Kansas Supreme Court held that such questioning regarding the terms of a plea agreement is not improper and defense counsel’s failure to object was not deficien t performance. Applicant cites no decision of the United States Supreme Cour t that would undermine either of those conclusions. No reasonable jurist could debate the dist rict court’s denial of this claim.
We DENY Applicant’s request for a COA, DENY his request for reconsideration of our prior ruling declining to appoint him appellate counsel, and DISMISS this appeal. Entered for the Court

Harris L Hartz Circuit Judge