UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ OMER EUGENE DAVIS, Petitioner - Appellant,

v. JASON BRYANT, Warden, Respondent - Appellee. No. 18-6075 (D.C. No. 5:15- CV-00513-M) (W.D. Okla.)

________________ _________________ ORDER DENYING A CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , HOLMES , and MATHESON , Circuit Judges.

________________ _________________ Petitioner Omer Davis, an Oklahoma state prisoner appearing pro se , seeks a certificate of appealability (COA) in order to challenge the dist rict court’s denial of his federal petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. Because Davis has not “made a substantial show ing of the denial of a c onstitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss the appeal.
I In June of 2011, Davis was charged in the District Court of Caddo County, Oklahoma, with alternative coun ts of child sexual abuse, firs t degree rape, and incest. The information and affidavit alleged th at on or about December 24, 2009, Davis

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 12, 2018
Elisabeth A. Shumaker Clerk of Court2 sexually abused his then-fifteen-year-old gran ddaughter by placing tw o fingers inside her vagina and, in turn, placing hi s penis partway into her vagina. Prior to trial, Davis filed a witness and e xhibit list indicating that he intended to present testimony from two men who would tes tify that Davis’s granddaughter had, at some point in the past, falsel y accused them of “‘raping a nd/or sexually abusing her.’” ROA, Vol. I at 263 (quoting OR at 67). Th e trial court held a pretrial hearing and concluded “that there was no reasonable su pport for the assertion that [Davis’s granddaughter] had made false allegations against” Davis’s two witnesses. Id. Consequently, the state trial c ourt “ruled that [Davis] could not raise that subject during the trial.” Id. The case proceeded to trial in December 2012. During the state’s case, the trial court permitted Davis’s adult daughter and a form er neighbor to testify that, when each of them was a child, Davis had forced them to perform oral sex upon him and had penetrated their vaginas with his fingers. The state trial court also permitted Davis’s ex-wife to testify that, when their daughter (the adult daughter who testified against Davis) was eighteen-months old, she observed Davis with his penis in their daughter’s hand. At the conclusion of th e evidence, the jury found Davis guilty of first degree rape and fixed his punishment at life imprisonment. On January 25, 2013, the state district court sentenced Davis in accordan ce with the jury’s verdict. Davis filed a direct appeal with the Ok lahoma Court of Criminal Appeals (OCCA) asserting five propositions of error. On February 27, 2014, the OCCA issued an unpublished summary opinion rejecting Davis’ s propositions of error and affirming his3 conviction and sentence. Davis v. State, No. F-2013-70 (Okla. Crim. App. Feb. 27, 2014). Davis filed a petition for rehearing, but that was denied by th e OCCA on April 1,
2014. Davis initiated these federal habeas proc eedings on May 12, 2015, by filing a pro

se petition for writ of habeas corpus pursuant to § 2254. In the section of the petition form that asked him to “state every ground on which you claim that you are being held in violation of the Constitution, laws, or trea ties of the United States,” Davis simply attached copies of pages from the direct appeal brief he filed with the OCCA. He thus, in effect, repeated in his federal habeas petition the five propositions of error alleged in his direct appeal brief. Those fi ve propositions of error are as follows: (1) that his due process rights were violated by the improper admission of evidence of other sex crimes he committed approximately thir ty years before the charged crime; (2) that he was denied his Sixth Amendment right to present witne sses in his defense (i.e., the two men who would have testified regarding Davis’s granddaughter); (3) th at the trial court erred in admitting the other sex crimes evidence beca use its probative value was substantially outweighed by the danger of unfair prejudice; (4 ) that his trial counsel was ineffective for failing to properly challenge the admission of the other sex crimes evidence and for failing to comply with state procedural no tice provisions govern ing the admission of evidence of false allegations of sexual abuse; and (5) the cumulative e ffect of the errors raised on appeal deprived him of a fair trial. On August 25, 2017, the magistrate judge issued a report and recommendation addressing and rejecti ng each of the five propositions of error and recommending that4 Davis’s petition be denied. Davis file d written objections to the report and recommendation. On March 19, 2018, the distri ct court issued a one-page order adopting the report and recommendation in its entirety and deny ing Davis’s petition. The district court entered final judgment that same day. Davis filed a notice of appeal on April 23, 2018. 1 The district court construed that as an application for COA and, on May 7, 20 18, issued an order denying Davis a COA. Davis has since filed an applica tion for COA with this court.
II To obtain a COA, Davis mu st make “a substantial show ing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied his claims on the merits, Davis “must demonstr ate that reasonable jurists would find the district court’s assessment of the constitutiona l claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 4 73, 484 (2000). In disposing of Davis’s petition, the di strict court correctly noted that the requirements imposed on a state prisoner for obt aining federal habeas relief under § 2254 are quite stringent. Specifically, to obtain fe deral habeas relief under § 2254 on the basis of any of the five claims asserted in hi s habeas petition, Davis must show that the

1 Under the Federal Rules of Appellate Procedure, Davis’s notice of appeal was required to “be filed with the district clerk wi thin 30 days after entry of the judgment . . . appealed from.” Fed. R. Ap p. P. 4(a)(1)(A). That deadlin e would have been April 18, 2018. Although Davis’s notice of appeal wa s actually filed with the district clerk on April 23, 2018, we conclude that the notice of appeal was nevertheless timely under the prison mail-box rule because it was accompanied by a certificate of mailing, signed by Davis under penalty of perjury, affirming that he placed the notice of appeal in the prison mail system on April 18, 2018. See Fed. R. App. P. 4(c)(1).5 OCCA’s adjudication of those claims either “r esulted in a decision that was contrary to, or involved an unreasonable application o f, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). With respect to Propositions One and Three in Davis’s petition, the district court noted that the OCCA concluded “‘[t]here was no plain error in the admission of the other crimes evidence’” because it “‘ was properly admitted to esta blish [Davis’s] propensity to commit the sexual assault against [his grandda ughter] and to rebut his claim that she fabricated the allegations against him.’” RO A, Vol. I at 258 (quoting Davis, No. F-2013- 70 at 3). The district court in turn conc luded that the OCCA’s decision “was neither contrary to nor involved an unreasonable app lication of clearly established federal law.” Id. at 260. In reaching this conclusion, th e district court noted that “the [challenged] testimony was relevant” and th at “any tendency toward unfair prejudice was mitigated by” Davis’s opportunity to cross-examine th e witnesses and present countering evidence, and by “the trial court’s jury instructions.” Id. at 261. With respect to Proposition Two, the distri ct court concluded th at the trial court’s exclusion of Davis’s proffered evidence of prior false allegations was consistent with “Oklahoma’s requirement that an accusation of prior false allegation be predicated on a showing of ‘reasonable support’ for the a ccusation, else such accusation must be excluded from evidence,” and was “not an instance of an absu rd, arbitrary, or6 disproportionate evidentiary rule.” 2 Id. at 270. The district court further concluded that “[t]he trial court’s application of that ev identiary rule in this case . . . did not unconstitutionally deprive [Dav is] of his right to confront witnesses or present a defense.” Id. In Proposition Four, Davis argued that his trial counsel was ineffective for failing to object to the other sex cr imes evidence and for failing to file a motion required under Oklahoma state law to present the prior false allegations evidence. The district court noted that the OCCA rejected both of these ar guments on the merits, and the district court in turn concluded that the OC CA’s analysis was neither cont rary to nor an unreasonable application of the Supreme Court’s decision in Strickland v. Wash ington, 466 U.S. 668 (1984). Finally, with respect to the cumulative error claim asserted by Davis in Proposition Five of his habeas petition, the dist rict court noted that the OCCA denied this claim on the merits. The district court in turn concluded “that the OCCA’s decision on [the] cumulative-error claim was not unreasona ble or contrary to clearly established federal law.” ROA, Vol. I at 276. The district court also concluded that, “even

2 The OCCA declined to reach the merits of this claim, concluding that Davis’s arguments failed to comply w ith its own Rule 3.5(A)(5), which states, in part, that “[m]erely mentioning a possible issue in an argument or citation to authority does not constitute the raising of a prop osition of error on appeal.” Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appe als, Tit. 22, Ch. 18, App. (2 018). The district court in this case concluded that, rather than analyz ing the adequacy of the OCCA’s procedural ruling, it could more readily address and di spose of Proposition Two on the merits. ROA, Vol. I at 267.7 considering de novo the poten tial cumulative effect of [P roposition] Two (which the OCCA did not address on the merits), no fu ndamental unfairness occurred.” Id. After carefully examining Davis’s applic ation for COA and the record on appeal, we conclude that Davis has failed to show th at jurists of reason would find debatable or wrong the district court’s denial of his constitutional claims.
III Davis’s application for COA is DENI ED and the appeal is DISMISSED.

Entered for the Court
Mary Beck Briscoe Circuit Judge