UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JEROME ERSLAND, Petitioner - Appellant,

v. CARL BEAR, Warden, Joseph Harp Correctional Center, Respondent - Appellee. No. 17-6255 (D.C. No. 5:15-CV-00902-HE) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before EID , KELLY , and O’BRIEN , Circuit Judges.

________________ _________________ An Oklahoma jury convicted Jerom e Ersland of first-degree murde r, and he was sentenced to life in prison. Aft er exhausting his state-court remedies, he applied for 28 U.S.C. § 2254 habeas relief in federal district court. The district court denied his application. To appeal from that denial, he requires a certifi cate of appealability (COA).
See id. § 2253(c)(1)(A). We now deny him a COA and dismiss this appeal

. BACKGROUND Mr. Ersland shot and killed Antwun Parker during an armed robbe ry of the Reliable Pharmacy in Oklahoma C ity, where Mr. Ersland worked as a pharmacist. The

 This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 

### September 18, 2018
Elisabeth A. Shumaker Clerk of Court2 state conceded that Mr. Ersland’ s first shot, which struck Mr. Parker in the forehead and thwarted the robbery, was legal . But less than a minute later, Mr. Ersland shot Mr. Parker five more times. Thi s resulted in his conviction fo r first-degree murder. In its decision on direct appeal, the Okl ahoma Court of Criminal Appea ls (OCCA) summarized the facts as follows: [T]eenagers . . . Antwun Parke r and Jevontai Ingram . . . entered the pharmacy at about 5:4 0 p.m., asking for drugs and m oney. Ingram had a pistol and Parke r, who was unarmed, blocked the fr ont door. . . . When Parker and Ingram came through the door, [the clerks] ran into the back. Ersland took a T aurus Judge revolver, loaded al ternately with .410 shotgun shells and .45 pistol shells, from the counte r. He shot Parker in the forehead with a shotgun shell. Parker fell uncon scious while Ingram ran out. Ersland followed Ingram, shot at Ingram until the revolver was empty, then returned to the store. Ersland stepped over Pa rker, took a .380 semi-automatic Kel-Tec pist ol from a drawer, and shot Park er five times in the lower chest. The par ties stipulated that the firs t shot to Parker’s head would have resulted in loss of consciousness but was not immediately fatal, although it co uld have eventually caused dea th. The five final shots hit Parker’s thorac ic aorta, lungs, liver, spleen, pancreas, stomach and intestine, resulting in significant bleeding into h is body cavity. The cause of death was multiple gunshot wounds to the head and abdomen. The incident was recorded on st ore security videotape. Less th an a minute elapsed between the teenagers’ e ntrance and the final shot. Aplt. App., Vol. I at 23-24. The OCCA affirmed Mr. Ersland’s conviction on direct appeal. He then sought post-conviction relief (PCR) in st ate district court. The stat e district court denied his application for PCR. He appealed to the OCCA, which affirmed t he denial. The OCCA also denied his request fo r an evidentiary hearing. He then filed his § 2254 applic ation. The district court deni ed habeas relief and denied him a COA.3 DISCUSSION Mr. Ersland has not renewed his request for a COA in this court . But he has filed an opening brief, which we will construe as a request for a COA

. See 10th Cir. R. 22.1(A). A COA may issue only upon “a subs tantial showing of the denial of a constitutional right.” 28 U.S. C. § 2253(c)(2). To satisfy thi s burden, Mr. Ersland must show “that reasonable jurists c ould debate whe ther (or, for tha t matter, agree that) the [application] should have been re solved in a different manner o r that the issues presented were adequate to deserve encour agement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (interna l quotation marks omitted). W here a claim was adjudicated on the merits in st ate court, as Mr. Ersland’s clai ms were, the state court’s decision is entitled to deference unless it “was contrary to, o r involved an unreasonable application of, clearly establishe d Federal law, as determined by the Supreme Court of the United States,” or “was bas ed on an unreasonable determinat ion of the facts in light of the evidence presented in t he State court pr oceeding,” 28 U. S.C. § 2254(d)(1), (2).
1. New Evidence Claim Mr. Ersland’s new evidence claim was based primarily on his pos t-trial recollection, developed with assi stance from his new counsel an d supported by affidavits from other witnesses, that he alw ays carried a gun in his pocke t when on duty at the pharmacy. He now recalled it was this weapon—which he pulled f rom his pocket, not out of a drawer—that he used to fire the final five shots. He claimed he had forgotten or repressed these facts as the result of his post-traumatic stres s disorder (PTSD) and4 asserted that the failure to pres ent them at trial had denied h im a fair trial. The OCCA held this was not new evidence and that there was not a reasona ble probability that it would have changed the result if presented at trial. The district court discerned M r. Ersland’s federal constitution al claim to be that the absence of evidence at tri al concerning the second gun viol ated his right to present a complete defense. See, e.g. , Crane v. Kentucky , 476 U.S. 683, 690 (1986) (“Whether rooted directly in the Due Proce ss Clause of the Fourteenth Ame ndment, or in the Compulsory Process or C onfrontation clauses of the Sixth Amendm ent, the Constitution guarantees criminal defendants a meaningful opportunity to pres ent a complete defense.” (citations and internal quotatio n marks omitted)). This right is violated when courts exclude evidence required by the defense to support its theory of the case. See id. The district court concluded the evid ence concerning the location o f the second gun was information Mr. Ersland himself possessed but allegedly did not remember until sometime after his trial and di rect appeal. It is not reasonab ly debatable, under these circumstances, that Mr. Ersland failed to show that the failure to grant him a new trial or other relief violated his right to present a complete defense, as interpreted by the Supreme
Court. The district court further conclu ded that any alleged error was harmless. Mr. Ersland argued the new evide nce negated malice aforethought , because he did not use the gun in his pocket to shoot Mr. Parker immediately upon returning to the pharmacy but instead he first we nt behind the counter to call 9 11. He argued he only shot Mr. Parker again after he heard and saw Mr. Parker move. But t he district court found5 this theory was inconsistent w ith a video surveillance tape, wh ich showed Mr. Ersland walking past a phone, “opening a drawer behind the counter and pulling out the second gun.” Aplt. App., Vol. I at 94 . Mr. Ersland argues that the s econd gun in his pocket “goes to [his] state of mind” and thus the absence of this evid ence must have affected the jury’s assessment of malice af orethought. Aplt. Br. at 30. Bu t he fails to rebut the district court’s undisputed descr iption of the events depicted on the video surveillance tape. Cf. Scott v. Harris , 550 U.S. 372, 380-81 (2007) (sta ting that in ruling on summar y judgment, court should not have relied on the plaintiff’s versi on of events that was “utterly discredited” by the fact s shown in an uncontested vide o recording capturing the events in question). The distric t court’s harmless-error analy sis is not reasonably debatable. Mr. Ersland also argues that he could have presented “a compel ling re-enactment video regarding his theory of the case and his state of mind.” Aplt. Br. at 30. He contends the OCCA was obliged to review this video or hold an e videntiary hearing on it before determining whether the new evidence could have had a pr ejudicial effect at trial. Under some circumstances, failing to hold an evidentiary hearin g may so affect a state court’s fact-finding process that it calls into question the re asonableness of its factual determinations. See Hurles v. Ryan , 752 F.3d 768, 790-91 (9th C ir. 2014). But not here. In an affidavit in support of h is PCR application Mr. Ersland t horoughly described the specific facts he now remembered due to his attorney’s investig ation and re-creation of the shooting:6 (1) that the reason he shot . . . P arker and not the second int ruder is that a display case was in the way and he didn’t have a clear shot at the second man; (2) that he always kept his .380 handgun in his right pant s pocket (the surveillance camera shows him co ming back into the store with h is hand in his pocket), and he had his hand on his gun as he came back int o the pharmacy after chasing the second intruder; (3) but as he was t rying to dial 911 he heard movement from Park er and at that point, he pulled the gun out of his pocket and walked back to wards Parker; (4) that because of the cash register and the height of the c ounter he could not view Parker ’s movements from behind the counte r so he had to step to the far east of that room; [and] (5) that as he moved to the east he saw Parker’s ha nd moving toward a backpack, which Ersland thought contained a weapon. Aplt. App., Vol. II at 399; see also id. at 410. 1
The OCCA considered Mr. Ersland’s affidavit along with the othe r evidence he submitted in reaching its conclusi on that he had failed to esta blish that “there is a reasonable probability that it woul d have cha nged the trial res ult.” Id. Vol. I at 69. Mr. Ersland has failed to show th is determination, even if reac hed without a review of the re-creation video or an evidentia ry hearing, was unreasonable. In discounting the effect of Mr. E rsland’s alleged new evidence , the district court also cited his general lack o f credibility. Mr. Ersland compla ins that in doing so, the

1 In his state district court a pplication for PCR, Mr. Ersland a lso argued the investigation resulting in the re -creation had established that he “had . . . felt a ‘whizzing by’ his head during the incident , but that it had been a ricoch et of a bullet from his own gun, and [a] gunshot sound [he hear d] was explained by [a] tras h can breaking.” Aplt. App., Vol. II at 399. But for what ever reason, he did not incl ude these alleged new facts as part of the ineffective assistance claim he presented to the OCCA, see id. Vol. II at 444-46, and the OCCA did not specifically discuss them, see id. Vol. I at 68-69. Given this omission, the district cour t did not err in refusing to co nsider this aspect of his claim. See id. at 91 n.3 (district court’s orde r characterizing reference to “Gunfire from intruders” and PTSD evidence as “an explanation of how the evid ence regarding the location of the second gun was d iscovered and why it was not di scovered earlier, not as additional pieces of his newl y discovered evidence claim ” (emphasis added)).7 district court (1) made improper u se of evidence that was admit ted at trial solely to show his consciousness of guilt, and (2) cited evidence of his alleg ed pretrial prevarications, which he claims resulted from hi s mental impairments. Mr. Ersl and’s limited citations to the record are insufficient to g ive us a complete picture of th e evidence admitted at trial concerning his prior inconsiste nt statements and credibility. See Aplt. Br. at 32. His citations to his experts’ opini ons about his cognitive processi ng deficiencies and PTSD fall short of explaining away the evidence the district court c ited. But in any event, even if we were to entirely discount the district court’s statements about credibility, its conclusion that the OCCA reas onably denied Mr. Ersland relief o n his new evidence claim is not reasonably debatabl e. Reasonable jurists could no t disagree that the absence of this evidence at trial did not have a “substantial and injur ious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (internal quotation marks omitte d). We deny a COA concerning t his claim.
2. Ineffective Assistance of Counsel Mr. Ersland also asserted his trial counsel was ineffective in failing to discover his new evidence and present it at t rial, and his appellate counsel was ineffective for failing to raise the claim on direct app eal. These ineffective assista nce claims are governed by Strickland v. Washington , 466 U.S. 668 (1984), which require d Mr. Ersland to show that “counsel’s performance w as deficient” and that “the deficient p erformance prejudiced the defense,” id. at 687. The district court determined tha t that OCCA’s conclusion that Mr. Ersland had failed to demonstrate Strickland ’s prejudice element was not unreas onable. That element8 requires a showing that there i s a reasonable probability that, but for counsel’s performance, the result of the p roceeding would have been diffe rent. Id. at 694. The district court concluded the OC CA reasonably determined that ev en if the new evidence had been introduced at trial th ere was no reasonable probabilit y that the outcome of the trial would have been different . And because the ineffective a ssistance of trial counsel claim lacked merit, appellate c ounsel was not ineffective in fa iling to raise it on direct appeal. Because reasonable jurist s could not disagree, we deny a COA concerning this claim. 2

2 Mr. Ersland’s ineffective assist ance claim has undergone a sig nificant metamorphosis since the district court proceeding s. His argume nt to the district court was that his defense was prejudi ced by trial counsel’s failure to discover and present certain later-remembered facts about what he saw, heard, and di d during the incident at the pharmacy. He argued that if h is attorney had presented thi s evidence concerning his perceptions and actions, it would have provided the jury with v aluable information about his state of mind that might hav e affected the result at trial. Mr. Ersland now complains about a plethora of other actions tha t trial counsel took or failed to take that prevented the jury from understanding hi s mental state during the incident. He complains counsel (1 ) contested “to a level of ab surdity” the state’s motion to have him undergo a pretrial e valuation concerning his mental competency, Aplt. Br. at 20; (2) failed to inform his docto rs that his son suffered from Autism Spectrum Disorder (Asperger’s), a heritable cond ition; (3) failed to provide expe rt reports to the state as ordered, then “cowered at hypothe tical sanctions they wholly in vented in an attempt to excuse their failure to procure ex pert testimony on Mr. Ersland ’s specific state of mind,” id. at 22; (4) failed to use evidenc e about his cognitive deficits to explain his prior inconsistent statements and actions, see id. at 25-26; and (5) failed to rebut incompetent testimony about his state of mi nd from a blood-spatter expert, see id. at 26-27. To the extent his arguments rais e new contentions about prejudi ce that were not presented to the district court , we decline to consider them. See Jones v. Gibson , 206 F.3d 946, 958 (10th Cir. 2000 ) (we do not generally conside r new arguments in a habeas appeal). To the extent he attempts to raise new, frees tanding claims of ineffective assistance of couns el, we will not grant a COA on t hese claims. Cf. United (continued)9 Mr. Ersland’s request for a COA is denied. This matter is dism issed.

Entered for the Court

Allison H. Eid Circuit Judge

States v. Flood , 713 F.3d 1281, 1291 (10th Cir. 2013) (in de termining whether to expand a COA, we limit our consideration to those claims properly pres ented to the district court).