UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ WAYNE HANDLEY BARCLAY, Petitioner - Appellant,

v. JASON BRYANT, Warden, Respondent - Appellee. Nos. 17-6242 & 18-6045 (D.C. No. 5:15- CV-01369-M) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ In these companioned cases, Wayne Handle y Barclay, proceeding pro se, seeks certificates of appealability (C OA) to appeal from the district court’s denial of his 28 U.S.C. § 2254 petition and its denial of his Fed. R. Civ. P. 60(b) motion for relief from judgment. Construing Barcla y’s pro se filings liberally, Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008), we deny a COA in each appeal and dismiss the matters. BACKGROUND Barclay was convicted in Oklahoma stat e court of two counts of rape by instrumentation and one count of lewd acts with a child under sixteen. The victim in all

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### May 23, 2018 Chris Wolpert Chief Deputy Clerk2 three counts was his step-gra ndaughter “K.K.,” who was betw een five and nine years old when the conduct occurred. Barclay was se ntenced to ten years’ imprisonment on each of the rape convictions, one of which was susp ended, and to six years’ imprisonment for the lewd-acts conviction, the sentences to run consecutively. His convictions and sentenced were affirmed on di rect appeal. Barclay was re presented by counsel at trial and on direct appeal, but he f iled an application for post-con viction relief pro se. After appointing counsel and holding an evidentiary hearing on in effectiveness of appellate counsel, the state trial court deni ed the application. Barclay a ppealed that denial pro se to the Oklahoma Court of Crimin al Appeals (OCCA), which affi rmed. Barclay then sought habeas relief in federal court, again represen ting himself. A magistrate judge issued a report and recommendation that the petition be denied. The district court adopted the recommendation over Barclay’s objections, deni ed relief, and denied a COA. The court also denied Barclay’s Rule 60(b) motion, in which he asked the court to address de novo an argument he made in his objections to the magistrate judge’s recommendation, and denied a COA to appeal that ruling. DISCUSSION A. No. 17-6242 To appeal the district court’s denial of his § 2254 petition, Barclay must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A ) (requiring a state prisoner appealing denial of § 2254 application to obtain a COA); We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).3 In his application for a COA to appeal th e district court’s denial of his habeas petition, Barclay nominally seek s a COA on three issues. The first two are substantive. In the first, he asks us to consider whether the introduction at trial of a recording of a “controlled call” that was placed without a warrant, allegedly in violation of federal and Oklahoma wiretap statutes, violated his Four th, Fifth, and Fourteenth Amendment rights. 1 Second, he seeks review of whether trial counsel rendered constitutionally ineffective assistance by (1) failing to inves tigate or argue that use of the controlled call violated the federal wiretap act, Title III of the Omnibus Cr ime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–20; or (2) failing to seek a hearing on the app lication of Oklahoma’s rape-shield statute to testimony trial counsel elicited from K.K. regarding whether she lied to a friend that she was pregnant, a t opic on which the trial court disallowed any further evidence. Appended to his second i ssue is an argument that the trial court’s refusal to permit trial counsel to continue questioning K.K. about the alleged pregnancy lie violated his Sixth Amendment right to confront the witnesses against him.

1 The controlled call was scripted by a polic e detective, placed to Barclay by K.K., and recorded. During the approximately seve n-minute call, K.K., who was then fourteen years old, told Barclay she had been lately troubled by the times Barclay had touched her. Although Barclay asked K.K. why she was ly ing and never expre ssly admitted to any sexual misconduct, he made some circumst antially incriminating comments, including that he thought it was over with; that K.K. coul d get him into a lot of trouble; that he was sorry; and that nothing ever re ally happened exce pt for “the messing around part,” State v. Barclay , No. CF-2009-1426 (Dist. Ct. of Clevel and Cty., Okla.), Court’s Ex. 1, Control Call at 6:35 to 6:40 (state court record filed in hard copy with this court). He also asked K.K. whether she was recording the call, whether anyone was present with her, and (repeatedly) whether the matter was going an y further, extracting a promise from K.K. that it would not.4 Barclay never presented these constituti onal issues in his habeas petition, supporting brief, or reply brief. In his objections to the ma gistrate judge’s report and recommendation, he did argue that admission of the controlled call violated his Fourth, Fifth, and Fourteenth Amendm ent rights because it was obtained without a warrant. But that argument came too late to avoi d waiver of appellate review. See Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 19 96) (“Issues raised for the fi rst time in objections to the magistrate judge’s recommendation are deemed waived.”). Because Barclay never properly presented issues one and two to the district court, he has waived appellate review of them. We therefore deny a COA on those issues. See United States v. Viera , 674 F.3d 1214, 1220 (10th Cir. 2012) (denying COA on issues not presented to district court in § 2254 petition by “adh er[ing] to our general rule ag ainst considering issues for the first time on appeal”). In apparent acknowledgement of this pr ocedural impediment, the third “issue” Barclay seeks a COA on is couched as a requ est that we overlook a ny waiver concerning issues one and two because he had limited access to legal re search materials and received poor advice from jailhouse lawyers when he pr epared his application for post-conviction relief 2 and habeas petition. See No. 17-6242, Appl. for COA at 14–16; id. at 15 (“Petitioner submits that [he] doe s not want a mixed petition to lose presentation of issues not completely argued in the original petition that justices like yourse lf will see readily.

2 It appears Barclay never presented any of the claims he now seeks a COA on in either his direct appeal, his application fo r post-conviction relief, or his appeal from the denial of that application.5 Petitioner seeks further forum to argue debatabl e issues, but guidance as to issues not waived by [one of the jailhouse lawyers] .”). But Barclay did not present these contentions to the district court, and he has not explained that failure. We therefore deem his third “issue” waived and de ny his request for a COA. See Rhine v. Boone , 182 F.3d 1153, 1154 (10th Cir. 1999) (refusing to consid er a § 2254 petitioner’s contention that the State of Oklahoma unconstitutiona lly impeded his ability to tim ely file his habeas petition by denying access to legal materi als, because petitioner had no t raised the issue in the district court in response to state’s motion to dismiss). B. No. 18-6045 In No. 18-6045, Barclay seeks a COA to a ppeal the district court’s denial of his Rule 60(b) motion. In that motion, he asked the cour t to address de novo the new argument he made in his objections to th e magistrate judge’s recommendation—that conducting the controlled call without a warra nt violated federal and Oklahoma wiretap statutes, so its introduction at trial violated his constitutional rights. The district court denied the motion, finding that Barclay had not established any basis for granting relief under Rule 60(b), such as a ch ange in the law, new eviden ce, manifest injustice, and misapprehension of the facts, the law, or Barclay’s position, and that it had thoroughly reviewed de novo “all relevant pleadings” before entering judgment on the petition. R.,Vol. 2 at 191. The district court’s denial of the Rule 60(b) motion was a fina l order disposing of the merits of a motion that arose from the denial of a § 2254 pe tition. We therefore conclude that Barclay must obtai n a COA to appeal that order. See Harbison v. Bell ,6 556 U.S. 180, 183 (2009) (explaining that C OA requirement of 28 U.S.C. § 2253(c)(1)(A) “governs final orders that di spose of the merits of a habeas corpus proceeding”); Spitznas v. Boone , 464 F.3d 1213, 1218 (10th Cir. 2006) (holding that a § 2254 petitioner must obtain a COA “to appeal from the denial of a true Rule 60(b) motion in the district court” 3 ); accord United States v. Winkles , 795 F.3d 1134, 1142 (9th Cir. 2015) (concluding that in keeping with Harbison , “a COA is required to appeal the denial of a Rule 60(b) motion for relief fr om judgment arising out of the denial of a [28 U.S.C. §] 2255 motion”). To make “a substantial showing of the deni al of a constitutional right” needed to obtain a COA, 28 U.S.C. § 2253(c)(2), Barclay must demonstrate “that reasonable jurists could debate whether (or for that matter, agree that) the petition”—here, the Rule 60(b) motion—“should have been resolved in a diff erent manner or that the issues presented were adequate to deserve enco uragement to proceed further,” Miller-El v. Cockrell , 537 U.S. 322, 336 ( 2003) (internal quotation marks omitted). Taking into consideration that our review of the denial of a Rule 60(b) motion is for abuse of discretion, Servants of the Paraclete v. Does , 204 F.3d 1005, 1009 (10th Cir. 2000), we conclude that reasonable jurists coul d not debate the distri ct court’s resolution

3 Barclay’s Rule 60(b) motion was a “true” one, and not a second or successive habeas petition, because it alleged “a defect in the integrity of the federal habeas proceeding.” Spitznas , 464 F.3d at 1215–16. The alle ged defect was the failure to review de novo an argument Barclay advanced in his objections to the magistrate judge’s report and recommendation, and success on the motion did not depend “on a determination that the court had incorrectly ruled on the merits in the habeas proceeding,” In re Pickard , 681 F.3d 1201, 1206 (10th Cir. 2012).7 of the Rule 60(b) motion. Nor is the issue presented in that motio n—whether the district court should have reviewed the warrantless c ontrolled-call issue de novo—deserving of further proceedings. In addition to canva ssing and rejecting other possible bases for Rule 60(b) relief, the district court made clear that, contrary to Barclay’s argument, it had in fact engaged in de novo review of his objections before adopting the recommendation, denying the petition, and entering judgment. CONCLUSION Barclay’s applications for a COA are deni ed, and these matters are dismissed. Barclay’s Motion for Limited Rema nd, in which he asks for a remand so that the district court can have the oppo rtunity to grant his Rule 60(b) mo tion, is denied as moot because the district court has since denied the Rule 60(b) motion.

Entered for the Court
Mary Beck Briscoe Circuit Judge