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 CERTIFIC ATE OF APPEALABILITY *

Before LUCERO , MATHESON, and BACHARACH , Circuit Judges.

Paul Morehead, a Colorado state prisone r, seeks a certificate of appealability (“COA”) to challenge the district court’s deni al of his 28 U.S.C. § 2254 application for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiri ng a COA to appeal denial of a § 2254 application). Exercising jurisd iction under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collateral estoppel.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. A pp. 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-2- I. BACKGROUND
A. State Proceedings The State of Colorado charge d Mr. Morehead with driving under the influence and driving with excessive alcohol content. Th e State planned to present Cynthia Burbach’s testimony at trial. Ms. Burbach was a superv isor at the Colorado Department of Health and Environment laboratory, where Mr. More head’s blood alcohol content was tested after his arrest. Leading up to trial, Mr. Morehead i ssued 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 sh e knowingly misrepresented her academic background while testifying as an e xpert witness in other cases. The Douglas County Co urt quashed the subpoena, conc luding the jury might place a disproportionate value on Ms. Burbach’s unde rgraduate record. The jury convicted Mr. Morehead of the lesser incl uded offense of driving whil e ability impaired. He was sentenced to ten months in jail with an ad ditional 365 days stay ed upon condition of successful completion of supervised probation. On direct appeal to the st ate district court, Mr. Morehead contended the county court improperly quashed the subpoena seek ing Ms. Burbach’s academic records. The state district court affirmed the county co urt, concluding Ms. Bu rbach’s undergraduate-3- records would have been irre levant to her testimony. Mr. Morehead then filed a petition for certio rari in the Colorado Supreme Court, which was denied.
B. Federal District Court Proceedings Mr. Morehead filed a 28 U.S.C. § 2254 ap plication for a writ of habeas corpus with the United States District Court for the Di strict of Colorado. The application raised one claim for relief, asserting he “was convicted in violation of his ri ght to due process of law under the Fifth and Fourte enth Amendments to the Co nstitution of the Untied [sic] States by the knowing use of perjured testimony and the su ppression of evidence which would have revealed the perjury to the jury.” Aplt. App. at 10 (capitalization altered). The district court concluded the claim had tw o 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 an d (2) when the County Court quashed the subpoena seeking Ms. Burbac h’s academic records. On April 27, 2015, th e district court dismissed the “a ctual perjury portion” of the claim as unexhausted and pr ocedurally 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 § 2 254 application and denied a certificate of appealability. Mr. Morehead th en filed this application requesting a COA only on the-4- “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 (2 003). To obtain a COA, Mr. Morehead must make “a substantial showin g 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 reso lved in a different manner or th at the issues presented were adequate to deserve encourag ement 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 debata ble 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 deci sion “was contrary to, or involved an unreasonable application of, clearly estab lished 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 li ght of the evidence presented in the State court proceeding,” id. § 2254(d)(2).-5- B. Analysis Mr. Morehead argued in his § 2254 appli cation that his conviction violated his Fifth and Fourteenth Amendmen t rights based on “the suppression of evidence [Ms. Burbach’s academic record s] which would have re vealed 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 proc ess requires disclosure of exculpatory evidence. The Government filed an answer to Mr. Mo rehead’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 ri ght 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 initia l § 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 unpublishe d opinion, though not precedential, to be instructive. See 10th Cir. R. 32.1 (“Unpublished deci sions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.-6- 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 cont est the district court’s ruling on his Brady due process claim. He has thus failed to ma ke “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 M r. Morehead’s application for a COA and dismiss this matter.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge