UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOHN KENNEDY ONYANGO, Petitioner - Appellant,

v. JANET DOWLING, Warden, Respondent - Appellee. No. 18-6007 (D.C. No. 5:17-CV-00384-HE) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ I. BACKGROUND Oklahoma state prisoner John Kennedy On yango was convicted for a rape that occurred in July 2010. He was se ntenced to 35 years in prison. Mr. Onyango’s defense was that the victim’s mother had fabricated the charge and had coached the victim because he had caus ed her boyfriend to be fired from a job. Before his trial, the state court refused Mr. Onyango’s request to present a state social worker’s opinion that the mother had coached th e victim and the victim’s brother on what to say to authorities during an investigation in 2009 of the mother and her boyfriend for

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### May 3, 2018
Elisabeth A. Shumaker Clerk of Court2 child abuse. At the trial, Mr. Onyango had the opportunity to cro ss-examine the victim, the mother, and a forensic interv iewer of the victim. He also testified in his own defense. On appeal, the Oklahoma Court of Crimin al Appeals (“OCCA”) denied that this ruling was an abuse of discretion or that it violated Mr. Onyango’s right to present a defense under the Sixth and Fourteenth Amendments, reasoning as follows: Although a defendant has a constitu tional right to present evidence in his defense, the evidence proffered must conform to well established rules of evidence. See Holmes v. South Carolina , 547 U.S. 319, 326 (2006). Here, the trial court did not abuse its discretion as the evidence proffe red did not meet the relevancy requirements of the evidence code. The evidence was not relevant to the credibility or believa bility of the victims re garding the issues in this case. This propositi on is, therefore, denied.
ROA at 41. The federal district court denied habeas relief under 18 U.S.C. § 2254 to Mr. Onyango, adopting a magistrate judge’s Report and Recommendation (“R&R”) and holding the OCCA’s decision was not contrary to or an unreasonable application of clearly established Supreme Court law un der § 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court also denied a certificate of appealability (“COA”) to Mr. Onyango. ROA at 35. Mr. Onyango now seeks a COA to appeal the district court’s denial of his § 2254 application. See 28 U.S.C. § 2253(c)(1)(A) (re quiring a COA to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request and dismiss this matter.3 II. DISCUSSION
A. COA and AEDPA To obtain a COA, Mr. Onyango must make “a substantial showing of the denial of a constitutional right ,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could debate whether . . . th e petition should have been resolved in a different manner or that the issues presented were adequa te to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). AEDPA governs federal habeas revi ew of state court decisions. See 28 U.S.C. § 2254. If state court proceed ings decided the merits of a claim, a federal court may grant habeas relief only if the state court decision “was contrary to, or involved an unreasonable application of, cl early established Federal la w, as determined by the Supreme Court of the United States,” 28 U. S.C. § 2254(d)(1); or “was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding,” id. § 2254(d)(2); see also Harrington v. Richter , 562 U.S. 86, 97- 98 (2011). In deciding whether to grant a COA, we are required to “look to the District Court’s application of AEDPA to petitioner’s constitutio nal claims and ask whether that resolution was deba table among jurists of reason.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). Under AEDPA, a federal court may “issu e the writ” only when the applicant shows “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Su preme] Court’s precedents.” Richter , 562 U.S. at 102 (emphasis added). Thus, “even a strong case for relief does not mean the state court’s4 contrary conclusion was unreasonable.” Id. “‘If this standard is difficult to meet’—and it is—‘that is because it was meant to be.’” Burt v. Titlow , 571 U.S. 12, 20 (2013) (quoting Richter , 562 U.S. at 102). Indeed, AEDPA stops just “short of imposing a complete bar on federal-court relitigation of claims alr eady rejected in state proceedings.” Richter , 562 U.S. at 102. Accordingly, “[w]e will not ligh tly conclude that a State’s criminal justice system has experienced the ‘extreme malfuncti on’ for which federal habeas relief is the remedy.” Titlow , 572 U.S. at 20 (quoting Richter , 562 U.S. at 102) (alteration omitted).
B. Analysis In his brief to this court, Mr. Onyang o does not mention AEDPA other than to summarize the district court’ s conclusion that, “in terms of the AEDPA, the decision of the OCCA was not contrary to clearly establis hed law.” Aplt. Br. at 18. The district court specifically stated that “the OCCA’s de termination of the issue did not involve an unreasonable application of Supreme Court precedent.” RO A at 34. Mr. Onyango has not shown “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents,” Richter , 562 U.S. at 102 (emphasis added), or that reasonable jurists coul d debate the district court’s denial of his § 2254 application. Although the OCCA relied on Holmes to affirm, Mr. Onyango does not mention it. Instead, as in the district court, he relies on Taylor v. Illinois , 484 U.S. 400 (1988); Crane v. Kentucky , 476 U.S. 683 (1986); and Washington v. Texas , 388 U.S. 14 (1967), for the general proposition that the “right to pres ent a defense” includes “the right to call5 witnesses” whose “testim ony is relevant to the defense.” Aplt. Br. at 20. 1 But, as the magistrate judge pointed out in the R&R, these decisions are not on point. ROA at 13 n.7. In these cases, the Supreme Court considered, respectively, rules excluding (1) evidence as a sanction, (2) the manner a confession was secured, and (3) testimony of principals, accomplices, and accessories in support of each other. Crane and Washington addressed whether the exclusion of evid ence was based on an arbitrary rule. Taylor involved the exclusion of testimony as a sanction for the defendant’s discovery violations. In this case, by contrast, the state trial court applied Oklahoma’ s law on relevance. Under Oklahoma Statutes title 12, § 2401, “‘ Relevant evidence’ me ans evidence having any tendency to make the existence of a ny fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under § 2403, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue dela y, needless presentation of cumulative evidence, or unfair and harmful surprise.” Unlik e the rules in the cases cite d by Mr. Onyango, the ones applied here were “well-established rules of ev idence [that] permit trial judges to exclude

1 A defendant’s right to pres ent a defense is essential to a fair trial but is not absolute. United States v. Bautista , 145 F.3d 1140, 1151 (10th Cir. 1998). For example, “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inad missible under standard rules of evidence.” Taylor v. Illinois , 484 U.S. 400, 410 (1988). “A de fendant must abide the rules of evidence and procedure.” Bautista , 145 F.3d at 1151-52; see United States v. Prince–Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (“[C]riminal defendants do not have a right to present evidence that the district court, in its di scretion, deems irrelevant or immaterial.”)6 evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to misl ead the jury.” Holmes , 547 U.S.
at 326. Based on the record, and given that the opinion testimony Mr. Onyango wished to present stemmed from an investigation of th e victim’s mother and her boyfriend that occurred during the year before the rape, the OCCA determined that “the trial court did not abuse its discretion as the evidence proffe red did not meet the relevancy requirements of the evidence code.” ROA at 41. In its order denying Mr. Onyango’s § 2254 ap plication, the district court said “the trial court ruled that the disputed evidence was not relevant and that the danger of prejudice outweighed its probative value.” Id. at 33. Although it also said that the state “trial court’s decision to ex clude the evidence might reas onably be debated” and that “some judges might well have reached a [different] conclusion,” id. at 34, the district court did not address the OCCA’s conclusion th at there was no abuse of discretion. This was consistent with the rule that “it is not the province of a federal habeas court to reexamine state-court determinat ions on state-law questions.’’ Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). 2 The district court denied ha beas relief because Mr. Onyanga’s application foundered on the AEDPA standard: “[T]he OCCA’s determination of the issue did not involve an unreas onable application of Supreme Court precedent.” ROA at

2 This court has said that “an eviden tiary ruling infringes a defendant’s due process rights only if the dist rict court violates the Fe deral Rules of Evidence.” United States v. Oldbear , 568 F.3d 814, 820 (10th Circuit 2009).7 34. Mr. Onyango has not shown otherwise or that reasonable jurists could debate the district court’s decision. Regardless of the state-law reason the evid ence was excluded, “to be eligible for federal habeas relief, [Mr. Onyango] must pr ove that the state tria l court's evidentiary ruling rendered the trial so fundamentally unfair as to c onstitute a denial of federal constitutional rights,” Duvall v. Reynolds, 139 F.3d 768, 789 (10t h Cir. 1998) (quotations omitted); see also Mathews v. Price, 83 F.3d 328, 332 (10th Cir. 1996), and that any such violation was contrary to or an unreasonable application of clearly established Supreme Court law. Mr. Onyango has not done so, nor has he shown that reasonable jurists could debate the district court’s applicati on of AEDPA to deny habeas relief.
III. CONCLUSION We deny Mr. Onyango’s request for a COA and dismiss this matter.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge