UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

FRANK THOMAS, 

 Petitioner - Appellant, 

v. 

ROBERT PATTON, Director, 

 Respondent - Appellee. 

No. 15-6092 

(D.C. No. 5:13-CV-00578-F) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges. 

_________________________________ 

Proceeding pro se,1

 Oklahoma state prisoner Frank Thomas seeks a certificate 

of appealability (COA) to appeal the district court’s denial of his federal habeas 

petition. 

Thomas was convicted in Oklahoma state court for trafficking in illegal drugs 

with a prior felony conviction, possession of a controlled substance with intent to 

distribute after a prior felony conviction, and domestic abuse. The Oklahoma Court 

 *

 This order and judgment is not binding precedent, except under the doctrines 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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

1

 Because Thomas proceeds pro se, we liberally construe his brief. But we will 

not act as his advocate by scouring the record or developing arguments for him. See 

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). 

FILED 

United States Court of Appeals

Tenth Circuit 

September 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

of Criminal Appeals (OCCA) affirmed his convictions and sentence. The OCCA also 

affirmed a subsequent district court decision denying Thomas post-conviction relief. 

Thomas then turned to federal district court, filing a federal habeas corpus 

petition listing 35 grounds on which he believed relief was warranted. The district 

court referred the matter to a magistrate judge, who recommended denying Thomas’ 

petition. The district court accepted that recommendation, denied Thomas’ habeas 

petition, and also denied Thomas a COA. Thomas now seeks a COA from this court. 

We may grant Thomas a COA only if he “has made a substantial showing of 

the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). When a district court 

has decided an applicant’s claim on its merits, that standard is satisfied if “reasonable 

jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a district court 

instead concludes an applicant’s claim is procedurally barred, the applicant must 

show “that jurists of reason would find it debatable whether the petition states a valid 

claim of the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling.” Id. 

In his COA application, Thomas winnows down his 35 claims of error to 17. 

Regarding 11 of his issues, however, Thomas (1) references only his prior filings in 

federal and state court, and (2) fails to provide any supporting explanation or legal 

authority. See 10th Cir. R. 28.4 (warning that incorporation of lower court pleadings 

doesn’t satisfy requirements of Federal Rules of Appellate Procedure); 
3 

Fed. R. App. P. 28(a)(8) (stating briefs must contain appellant’s contentions with 

record citations and appropriate legal authority). 

Thomas’ pro se status does not relieve him of complying with Rule 28. Thus, 

his failure to cite the record, provide authority, and explain why the district court 

erred renders his briefing of most of his issues insufficient to warrant our review. See 

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005). 

Accordingly, we consider only the six arguments Thomas adequately briefs. See 

Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we routinely 

refuse to consider arguments that fail to comply with Rule 28). 

Those six arguments allege violations of the Fourth Amendment, insufficiency 

of the evidence, ineffective assistance of counsel, the district court’s failure to 

instruct the jury on accomplice testimony, the admission of purportedly false 

testimony, and violations of Brady v. Maryland, 373 U.S. 83 (1963). We have 

reviewed Thomas’ brief and the magistrate judge’s recommendation, and we agree 

with the district court that Thomas has not made the requisite showing for a COA. 

We deny his request for a COA and dismiss this appeal.2

 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

 2

 Thomas filed a motion to proceed in forma pauperis, but later paid the filing 

fee. Accordingly, we dismiss his motion as moot.