UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RECO EUGENE SELLS Petitioner - Appellant,

v. JOE M. ALLBAUGH, Respondent - Appellee. No. 17-5036 (D.C. No. 4:14-CV -00139-JED-TLW) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before KELLY , MURPHY , and MATHESON , Circuit Judges.

________________ _________________ State prisoner Reco Sells was convicted of Lewd or Indecent Proposal to a Child and of Facilitating Sexual Conduct w ith a Minor by Use of a Computer. The district court denied hi s application under 28 U. S.C. § 2254 challenging his convictions. He seeks a cer tificate of appealability (“ COA”) from this court to appeal that ruling. Exercising jurisdic tion under 28 U.S.C. § 1291, we deny a COA and dismiss this matter. 1

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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

1 Mr. Sells is proceeding pro se. Alt hough we liberally c onstrue a pro se litigant’s filings, see Erickson v. Pardus , 551 U.S. 89, 94 ( 2007), we may not “assume the role of advocate,” Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted). FILED United States Court of Appeals Tenth Circuit 

### August 15, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - The district court’s Opinion and Order de tails the facts lead ing to Mr. Sells’s prosecution and outlines the procedural hist ory of this case, including the direct appeal and post-conviction pr oceedings in the state cour ts. We will repeat that information only as necessary.
I. COA AND AEDPA REVIEW A prisoner needs a COA to appeal from a district c ourt’s denial of a § 2254 habeas application. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). When a state court has decided the applicant’s claim on the merits, we “look to the District Court’s application of [the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA ’)] to [the applicant’s] constitutional claims and ask whether that resolution was debatable among jurists of reason.” Id . at 336. AEDPA provides that federal courts cannot grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasona ble application of, clearly established Federal law, as determined by the Supreme C ourt of the United States,” 28 U.S.C. § 2254(d)(1); or “was based on an unreasonable determin ation of the facts in light of the evidence presente d in the State court proceeding,” id . § 2254(d)(2). When, as here, the district court dismis sed some of the claims on procedural grounds, we will grant a COA as to t hose claims only if the applicant can demonstrate both “that jurists of reason w ould find it debatable whether the petition states a valid claim of the denial of a c onstitutional right and th at jurists of reason- 3 - would find it debatable whether the distri ct court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).

II. ANTICIPATORY PROCEDURAL B AR AND PROCEDURAL DEFAULT Mr. Sells listed eight grounds for relie f in his § 2254 application. The first ground claimed that his convic tions for three of the counts violated double jeopardy, but Mr. Sells did not present this argument to the state courts as to one of the counts. He also did not present his second grou nd—claiming he was improperly convicted under general rather than specific statut ory provisions—to the state courts. The district court denied relief on these claims based on anticip atory procedural bar. An anticipatory procedural bar occurs when “t he court to which th e petitioner would be required to present his claims in order to [satisfy] the exhaus tion requirement would now find the claims pr ocedurally barred.” Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991). Mr. Sells has not shown, and we cannot discern, how reasonable jurists would debate the district c ourt’s ruling on this basis. The district court also denied relief on three other grounds 2 because (1) they were not presented to the Oklahoma Court of Criminal Appeals (“OCCA”) on direct appeal, (2) the OCCA affirmed the state di strict court’s denial of post-conviction relief because these grounds were proce durally barred under an independent and adequate state ground, ROA Vol. I, Doc. 7- 5, and (3) Mr. Sells could not show cause and prejudice for the procedur al default or a miscarriage of justice based on factual

2 These grounds claimed violations of th e fair trial right, the hearsay rule, and the Fourth Amendment’s warrant requirement.- 4 - innocence. See Coleman , 501 U.S. at 750, 753. We have carefully reviewed the state court rulings on these issues and considered Mr. Sells’ s arguments, and we cannot say that reasonable jurists would debate th e district court’s decision on these issues.
III. AEDPA REVIEW OF THE REMAINING CLAIMS The district court determined that the OCCA had addressed f our of Mr. Sells’s claims on the merits and, applying AE DPA review, concluded that the OCCA’s rejection of those claims was not contrary to or an unreasonable a pplication of clearly established Supreme Court law. 3
A. Double Jeopardy On direct appeal, Mr. Sells argued that his convictions un der Counts 2 and 3 for Lewd or Indecent Proposal to a Child violated the Double Jeopardy Clause’s protection “against multiple punishments for the same offense imposed in a single proceeding.” Jones v. Thomas , 491 U.S. 376, 381 (1989) (quotations omitted); see U.S. Const. amend. V. The OCCA rejected this claim because “[t]he evidence shows the commission of two separate crimes on separate days.” ROA Vol. I, Doc. 7-3 at 4-5. As the district court pointed out, the charged conduct and jury instructions were different for each count, and Mr. Sell s failed to show the OCCA’s decision was

3 The district court rejected as an improper ground for federal habeas relief Mr. Sells’s challenges to his convi ctions based on alleged error in the application of state law. See District Court Order and Opinion at 8-9; ROA Vol. I, Doc. 15. The district court’s treatment of these challenge s is not reasonably debatable. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991) (holding federal habeas re lief is not available to correct errors of state law).- 5 - contrary to or an unreasonable application of clearly established Supreme Court law. Moreover, the OCCA determined that Mr . Sells committed two crimes under state law. Reasonable jurists woul d not debate the district court’s conclusion that the OCCA’s ruling on this issue was reasonable.
B. Sufficiency of the Evidence on Entrapment The OCCA rejected Mr. Sells’s conten tion that the State failed to prove beyond a reasonable doubt that he was not entrapped. The OCCA reviewed the evidence and determined a rational trier of f act could have found lack of entrapment beyond a reasonable doubt. Th e district court, applying AEDPA deference, found the OCCA’s affirmance was reasonable. Having reviewed the relevant materials, we conclude reasonable jurists would not debate the dist rict court’s conclusion.
C. Jury Instructions (Two Grounds) Mr. Sells made two other claims: (1) the tr ial court erred in fa iling to instruct the jury on “sentence entrap ment,” and (2) Instructi on No. 26 was fundamentally unfair and violated due process because it was confusing and reve rsed the burden of proof. On direct appeal, the OCCA disa greed, holding the evidence did not entitle Mr. Sells to a “sentence en trapment” instruction and that Instruction No. 26 (concerning the involvement of law enforcem ent in detecting an offense) was clear and valid, a holding the district court found reasona ble. We agree w ith the district- 6 - court’s conclusion for substantially the same reasons it stated, a conclusion that reasonable jurists would not debate. 4
IV. CONCLUSION We deny a COA and di smiss this matter.
ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge

4 In his brief to this court, Mr. Sells contends his counsel was ineffective because he did not obtain evidence that woul d have been relevant to the case. Aplt. Br. at 2-3, 2-4. We do not consider th is argument because it was absent from his § 2254 application. See ROA Vol. I, Doc. 1; Gonzales v. Tapia, 383 F. App’x 774, 776 (10th Cir. 2010) ( unpublished) (declining to consid er a claim of excessive bail raised for the first time in a COA application because “ it was not raised in federal district court”) (cited for persuasive value under 10th Cir. R. 32.1(A)).