UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

PAUL MOREHEAD,

 Petitioner - Appellant,

v.

THE DOUGLAS COUNTY, 

COLORADO, COUNTY COURT; 

CYNTHIA H. COFFMAN, Attorney 

General, State of Colorado,

Respondent - Appellee.

No. 15-1481

(D.C. No. 1:14-CV-02920-PAB)

(D. Colo.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

Paul Morehead, a Colorado state prisoner, seeks a certificate of appealability 

(“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a 

writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal denial 

of a § 2254 application). Exercising jurisdiction under 28 U.S.C. § 1291, we deny a 

COA and dismiss this matter. 

 

* This order is not binding precedent, except under the doctrines of law of the 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 

April 28, 2016

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

A. State Proceedings 

The State of Colorado charged Mr. Morehead with driving under the influence and 

driving with excessive alcohol content. The State planned to present Cynthia Burbach’s 

testimony at trial. Ms. Burbach was a supervisor at the Colorado Department of Health 

and Environment laboratory, where Mr. Morehead’s blood alcohol content was tested 

after his arrest. 

Leading up to trial, Mr. Morehead issued a subpoena duces tecum to the 

University of Colorado at Colorado Springs seeking Ms. Burbach’s graduate school 

application. Mr. Morehead asserted Ms. Burbach’s application, which included her 

undergraduate transcript, would reveal she knowingly misrepresented her academic 

background while testifying as an expert witness in other cases. 

The Douglas County Court quashed the subpoena, concluding the jury might place 

a disproportionate value on Ms. Burbach’s undergraduate record. The jury convicted Mr. 

Morehead of the lesser included offense of driving while ability impaired. He was 

sentenced to ten months in jail with an additional 365 days stayed upon condition of 

successful completion of supervised probation. 

On direct appeal to the state district court, Mr. Morehead contended the county 

court improperly quashed the subpoena seeking Ms. Burbach’s academic records. The 

state district court affirmed the county court, concluding Ms. Burbach’s undergraduate 
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records would have been irrelevant to her testimony. 

Mr. Morehead then filed a petition for certiorari in the Colorado Supreme Court, 

which was denied. 

B. Federal District Court Proceedings 

Mr. Morehead filed a 28 U.S.C. § 2254 application for a writ of habeas corpus 

with the United States District Court for the District of Colorado. The application raised 

one claim for relief, asserting he “was convicted in violation of his right to due process of 

law under the Fifth and Fourteenth Amendments to the Constitution of the Untied [sic] 

States by the knowing use of perjured testimony and the suppression of evidence which 

would have revealed the perjury to the jury.” Aplt. App. at 10 (capitalization altered). 

The district court concluded the claim had two distinct parts: (1) “actual perjury” 

and (2) “suppressed evidence.” Aplt. App. at 92. That is, Mr. Morehead argued there 

were constitutional violations (1) when Ms. Burbach committed perjury by testifying at 

trial about her laboratory’s accreditation and (2) when the County Court quashed the 

subpoena seeking Ms. Burbach’s academic records. 

On April 27, 2015, the district court dismissed the “actual perjury portion” of the 

claim as unexhausted and procedurally barred. Aplt. App. at 100. 

On October 16, 2015, the district court addressed the merits of the “suppressed 

evidence” portion of the claim and concluded Mr. Morehead was not entitled to relief. 

The court therefore denied Mr. Morehead’s § 2254 application and denied a certificate of 

appealability. Mr. Morehead then filed this application requesting a COA only on the 
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“suppressed evidence” portion of his claim. 

II. DISCUSSION 

A. Standard of Review 

A COA is necessary to appeal from a district court’s denial of a § 2254 

application. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a COA, 

Mr. Morehead must make “a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He 

may do so by “showing that reasonable jurists could debate whether . . . the [motion] 

should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484 

(quotations omitted). 

When, as here, a state court has decided the applicant’s claim on the merits, we 

make this COA determination by “look[ing] to the District Court’s application of [The 

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)] to [the applicant’s] 

constitutional claims and ask whether that resolution was debatable among jurists of 

reason.” Miller-El, 537 U.S. at 336. AEDPA provides that federal courts cannot grant 

habeas relief unless the state court’s decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, 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 light of the evidence presented in the State 

court proceeding,” id. § 2254(d)(2). 
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B. Analysis 

Mr. Morehead argued in his § 2254 application that his conviction violated his 

Fifth and Fourteenth Amendment rights based on “the suppression of evidence [Ms. 

Burbach’s academic records] which would have revealed perjury to the jury.” Aplt. App. 

at 10. He contended the suppression was contrary to Brady v. Maryland, 373 U.S. 83 

(1963), and its progeny, which hold due process requires disclosure of exculpatory 

evidence. 

The Government filed an answer to Mr. Morehead’s § 2254 application. In his 

response to the Government’s answer, Mr. Morehead relied on Davis v. Alaska, 415 U.S. 

308 (1974), to argue he was denied his Sixth Amendment right to cross-examination. 

The district court refused to consider the argument because Mr. Morehead did not raise a 

Sixth Amendment claim in his § 2254 application. 

 In his application to this court for a COA, Mr. Morehead abandons his Brady due 

process argument and focuses on his Davis Sixth Amendment argument. But the Sixth 

Amendment claim was absent from the initial § 2254 application and was therefore 

forfeited. See Pedockie v. Bigelow, 581 F. App’x 698, 700 (10th Cir. 2014) 

(unpublished) (holding claims not raised in § 2254 application are forfeited);1 Davis v. 

 1

 We find the reasoning of this unpublished opinion, though not precedential, to be 

instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may 

be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 
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Workman, 695 F.3d 1060, 1077 (10th Cir. 2012) (holding a COA applicant forfeited a 

claim of error in district court’s failure to hold an evidentiary hearing by not seeking a 

hearing in his § 2254 proceeding). 

Moreover, Mr. Morehead does not contest the district court’s ruling on his Brady 

due process claim. He has thus failed to make “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). 

III. CONCLUSION 

 For the foregoing reasons, we deny Mr. Morehead’s application for a COA and 

dismiss this matter. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge