FILED

United States Court of Appeals

Tenth Circuit

December 9, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DUSUN L. WASHINGTON,

Petitioner - Appellant, No. 08-5077

v. (N.D. Oklahoma)

MIKE MULLIN, Warden,

Respondent - Appellee.

(D.C. No. 4:04-cv-00348-TCK-PJC)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.

An Oklahoma state-court jury convicted Dusun Lamont Washington of

robbery by force, and he was sentenced to 30 years’ imprisonment. On direct

appeal to the Oklahoma Court of Criminal Appeals (OCCA) Mr. Washington

raised three claims: (1) that he was denied constitutional due process because the

in-court identification by an eyewitness was tainted by an impermissibly

suggestive photographic lineup; (2) that he was denied constitutional due process

because the evidence at trial was insufficient to convict him of robbery; and (3)

that the prosecution engaged in misconduct when it raised societal alarm against

him by portraying him as a “predatory animal” and trying to invoke sympathy for

the victim. 
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After the OCCA affirmed his conviction, Mr. Washington filed an

application for a writ of habeas corpus under 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Oklahoma, raising the same three

grounds for relief. The district court denied his application and his subsequent

motion for a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)

(COA is necessary to appeal denial of relief in § 2254 proceeding). 

Mr. Washington then filed an application for a COA in this court. Because a

reasonable jurist could not debate the correctness of the district court’s decision,

we deny a COA and dismiss this appeal.

A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the
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state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). As we have explained:

Under the “contrary to” clause, we grant relief only if the state court

arrives at a conclusion opposite to that reached by the Supreme Court

on a question of law or if the state court decides a case differently

than the [Supreme] Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, relief is provided

only if the state court identifies the correct governing legal principle

from the Supreme Court's decisions but unreasonably applies that

principle to the facts of the prisoner's case. Thus we may not issue a

habeas writ simply because we conclude in our independent judgment

that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must

also be unreasonable. 

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (citations and internal

quotation marks). Because all of Mr. Washington's claims were adjudicated on

the merits in state court, “AEDPA's deferential treatment of state court decisions

must be incorporated into our consideration of [his] request for COA.” Dockins

v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). 

We have reviewed the district court’s thorough opinion. No jurist of reason

could debate that court’s determinations that the OCCA’s denial of

Mr. Washington’s claims was not contrary to, or an unreasonable application of,
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clearly established federal law and was not based on an unreasonable

determination of the facts presented in evidence. 

We DENY the application for a COA and DISMISS the appeal. 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge