UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOE SANDERS, II, Petitioner - Appellant,

v. SCOTT CROW, Respondent - Appellee. No. 19-5080 (D.C. No. 4:19-CV -00396-CVE-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before McHUGH , KELLY , and MORITZ , Circuit Judges.

________________ _________________ Joe Sanders, II, an Oklahoma prisoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal the district court’s orde r denying his 28 U.S.C. § 2254 petition. For the reasons explained below, we deny his request and dismiss the petition. After an Oklahoma jury found Sanders gu ilty of first-degree murder and other crimes, the trial court sentenced him to life in prison wit hout the possibility of parole. In 2009, the Oklahoma Court of Crimin al Appeals (OCCA) affirmed Sanders’s

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Sanders’s pro se filings. But we do not act as his advocate or excuse his failure to follow procedural rules. See Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### January 28, 2020 Christopher M. Wolpert Clerk of Court2 convictions and sentence. The state district court later denied Sanders’s application for state postconviction relief. In 2010, Sanders filed his first § 2254 petition, seeking federal postconviction relief. Th e district court dismissed that petition on the merits. Sanders v. Miller , No. 10-CV-567-TCK-TLW, 2013 WL 2323138, at *10 (N.D. Okla. May 28, 2013) (unpublished) . We denied Sanders a COA. Sanders v. Miller , 555 F. App’x 750, 753 (10th Cir. 2014) (unpublished). In 2013, Oklahoma enacted the Postconviction DNA Act (DNA Act). See Postconviction DNA Act, ch. 317, 2013 Okla. Sess. Laws 1598 (codified at Okla. Stat. tit. 22, §§ 1373–1373.7). Sanders ag ain sought postconvict ion relief in state court, this time “request[ing that] biological material be tested ” under the DNA Act. R. 5. The state court denied relief, and the OCCA affirmed that denial. Sanders then filed the § 2254 petition at issue here. He argued that the state “[c]ourt erred in denying [his] request fo r [p]ost[]conviction DNA testing under” the DNA Act and asked the district court to “set an evidentiary hear ing for DNA testing.” R. 7, 16. The district cour t determined that Sanders could not proceed under §2254, dismissed his petition, and de nied his request for a COA. In so doing, the district court explained that although Sanders is “in custody pursuant to the judgment of a [s]tate court,” he did not a llege any “violation of the C onstitution or laws or treaties of the United States.” § 2254(a). Sanders now asks us to issu e a COA so he can appeal th e district court’s order. See 28 U.S.C. § 2253(c)(1)(A). Before we may do so, Sanders must “ma[ke] a substantial showing of the de nial of a constitutional right .” § 2253(c)(2). To make3 that showing, he must demonstrate at le ast that reasonable ju rists could debate “whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In short, Sanders fails to do so. “Federal habeas re lief is not available to correct state[-]law errors.” Leatherwood v. Allbaugh , 861 F.3d 1034, 1043 (10th Cir. 2017). And Sanders’s petition argues only an error of stat e law: that the “[c]ourt erred in denying [his] request for [p]ost []conviction DNA testi ng under” Oklahoma’s DNA Act. R. 7. Nevertheless, Sanders argues on appeal that the state court’s denial of DNA testing under Oklahoma’s DNA Act “deprive[s him] of his liberty” under the Due Process Clauses of the Fifth Amendment a nd Fourteenth Amendment. Aplt. Br. 3. But Sanders did not make this argument be low, and “[w]e do not generally consider [on appeal] issues that were not raised before the district court as part of the habeas petition.” Stouffer v. Trammell , 738 F.3d 1205, 1221 n. 13 (10th Cir. 2013). Further, Sanders “cannot transform a st ate[-]law claim in to a federal one merely by attaching a due[-]process label.” Leatherwood , 861 F.3d at 1043. A state’s procedures for postconviction DNA testing violate procedur al due process “only if they are fundamentally inadequate to vindicate the substan tive rights provided.” See Dist. Attorney’s Office for Thir d Judicial Dist. v. Osborne , 557 U.S. 52, 69 (2009); cf. Skinner v. Switzer , 562 U.S. 521, 525 (20 11) (noting that “ Osborne severely limits the federal action a state prisoner may bri ng for DNA testing”). And Sanders does not4 argue that Oklahoma’s DNA Act fa ils to meet this standard . For this reason as well, we reject Sanders’s due-process argument. In sum, Sanders does not challenge th e constitutionality of the DNA Act, only how the Oklahoma courts applied it. And r easonable jurists coul d not debate that “[a]n error in interpreting state la w cannot support habeas relief.” Farrar v. Raemisch , 924 F.3d 1126, 1133 (10th Cir. 2019). 2 Thus, we deny his request for a COA and dismiss this matter.

Entered for the Court
Nancy L. Moritz Circuit Judge

2 Sanders also suggests that DNA testi ng will “prove his innocence.” Aplt. Br. 3. But we have held that such freesta nding actual-innocence claims do not entitle a petitioner to habeas relief. See Farrar , 924 F.3d at 1131.