UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ YANCEY R. L. DOUGLAS, Petitioner - Appellant,

v. JIM FARRIS, Warden, Respondent - Appellee. No. 17-6219 (D.C. No. 5:16- CV-01454-C) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , McKAY , and O’BRIEN , Circuit Judges.

________________ _________________ Yancey R. L. Douglas, a state prisone r, seeks a certificat e of appealability (COA) under 28 U.S.C. § 2253(c)(1) to cha llenge the denial of his 28 U.S.C. § 2254 habeas petition. We deny his request for a COA. BACKGROUND On February 4, 2012, Sergeant Furrh and Sergeant Cadena of the Oklahoma City Police Department saw a silver Me rcedes speed throu gh an intersection. Sergeant Cadena turned on the patrol car’s emergency light s and pursued the Mercedes, which stopped within a block of being signaled to do so. The Mercedes had dark tinted windows, so the officers asked the occupant s to roll them down. After

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

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Elisabeth A. Shumaker Clerk of Court2 they did so, the officers were able to s ee that Douglas was the driver, and a woman was the front-seat passenger. Upon request , Douglas gave Sergeant Cadena his driver’s license and insuran ce information. But the passe nger told Sergeant Furrh that she had no identification. She gave as her name “Shelly Long” and also gave a birthdate. The officers returned to their patrol car to check the occupants’ identification information. Douglas’s inform ation came back as valid. Sergeant Furrh then entered “Shelly Long” into the in-car com puter, and after some difficulty, he found an entry with the birthdate and name given, but fo r someone of a different race than the passenger. Sergeant Furrh then deci ded to question the passenger. Sergeant Furrh re-approached the Me rcedes, and Sergeant Cadena hung back to act as backup. Sergeant Furrh asked Long to exit the car. Sh e did so after some hesitation, and as she got up, Sergeant Furrh saw a firear m on the passenger seat. He shouted “gun” to alert his pa rtner. R. vol. 4 at 754:1–5. Sergeant Furrh then reached for the gun. But Douglas put th e car into gear and began to drive away. At that point, Sergeant Furrh was “waist de ep with” his “whole entire uppe r body in the car” as he grabbed the gun, so he twisted out of the car, but it stil l “clip[ped]” him. Id. at 755:18–19, 756:15. Sergeant Furrh ran back to the patrol car, and jumped into the passenger’s seat. Meanwhile, Sergeant Cadena had hopped back in to the driver’s seat of the patrol car, and together, they pursued the Mercedes. The pursuit la sted a few minutes. Douglas3 eventually stopped the vehicle and fled on foot, but an officer who had joined the pursuit subdued and arrested him. The State of Oklahoma charged Douglas with one count of being a felon in possession of a firearm, see Okla. Stat. tit. 21, § 1283; one count of aggravated attempting to elude a police officer, see Okla. Stat. Ann. tit. 21, § 540A(B); one count of obstructing an officer, see Okla. Stat. Ann. tit. 21, § 540; and one count of assault and battery with a dangerous weapon, see Okla. Stat. Ann. tit. 21, § 645. At a preliminary hearing, the trial court dismisse d the charge of aggravated attempting to elude a police officer. And on October 22, 2014, a jury found Douglas guilty on the remaining counts. Six months later, Douglas filed a Motion for Production of Brady Material, and a week later, he filed a Motion for a New Trial . At sentencing, the trial court denied both motions. The trial court th en sentenced Dougla s to ten years’ imprisonment on the felon-in-possession ch arge, six months and a $500 fine on the obstructing-an-officer charge , and seven years on the as sault-and-battery-with-adangerous-weapon charge, all to run consecutively. On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA), Douglas argued, among other things, that Oklahoma had violated the rule of Brady v. Maryland , 373 U.S. 83, 87 (1963), by withhol ding from him until after trial a Computer Assisted Dispatch Report (CAD report) that, he said, conflicted with Sergeant Cadena’s and Sergeant Furrh’s tria l testimonies. And he argued that if the CAD report had been disclosed to the defense before trial, he c ould have used it to4 impeach the officers. Specifica lly, Douglas alleged that the CAD report showed that the officers in fact didn’t call in any record checks on him or Long, as they had testified. The OCCA determined that the record conflicted re garding whether the State had first disclosed the CAD report before tr ial. But because the officers’ testimonies were “corroborated by” the CAD report disc losed before sentencing (from the State’s perspective, for the second time), 1 the court concluded that the CAD report wasn’t material. R. vol. 1 at 79; see also R. vol. 2 at 455 (CAD report showing two inquiries entered by Sergeant Cadena on the day of th e traffic stop, one for Douglas and one for Long). And so, the court determined, Brady didn’t even require disclosure, because “nothing in the CAD report would have impeached the officers’ testimony.” R. vol. 1 at 82. The OCCA thus affirmed Douglas’s convictions. Douglas then filed for post-conviction reli ef in the District Court of Oklahoma County, arguing, among other things, that his direct-appeal counsel had been ineffective for failing to ra ise the issue of his trial co unsel’s ineffectiveness on the Brady CAD report issue. The state district court disagreed, remarking that Douglas’s direct-appeal counsel’s brief “was well written and raised a number of viable contentions” and further noting that just be cause “counsel did not raise [] additional

1 In response to Douglas’s Motion fo r a New Trial which argued that the district attorney failed to di sclose the CAD report before trial warranted in violation of Brady , the Oklahoma County District Attorney argued that the assistant district attorney who tried Douglas had received the CAD report by email on September 9, 2013, and had placed the report in Douglas’ s case file. And the district attorney alleged that Douglas’s defense counsel revi ewed that case file and all the evidence within it on October 14, 2014.5 attacks on trial counsel’s performance . . . does nothing to evince a deficient performance.” R. vol. 1 at 97. So it denied Douglas’s post-convi ction application. Acting pro se, Douglas appealed this denial to the OCCA. Id. at 90. The OCCA affirmed, determining that “[c]ontrary to [Douglas’s] claims , appellate counsel thoroughly litigated these claims in [Douglas ’s] direct appeal,” meaning that Douglas had failed to establish that his appella te counsel had performed deficiently. Id. On December 21, 2016, Douglas, again ac ting pro se, filed a habeas petition in the United States District Court for the Western District of Oklahoma. Id. at 6. He alleged that his direct-appeal counsel was ineffective for not raising the Issues of the trial Judge and not submitting the documentation of the in-cam[e]ra hearing on September 9th 2013. Appellate couns el was ineffective also for not submitting the news channel segment of Oklahoma st op and identify laws, or the traffic stop tapes. Id. at 11. In light of Douglas’s pro se stat us, the magistrate judge liberally construed this claim (in part) as arguing that Douglas ’s direct-appeal counsel “should have . . . challenged the State’s failure to produce the Computer Assisted Dispatch Report (“CAD”) discussed at the September 9, 2013, in-camera hearing and/or submitted the CAD report to the OCCA.” R. vol. 2 at 426. The magistrate judge rejected this Strickland claim, concluding that Douglas’s di rect-appeal counsel had raised the Brady CAD report issue. The district court adopted the magistra te judge’s Report & Recommendation, and denied Do uglas’s application for a ce rtificate of appealability.6 DISCUSSION To proceed with his appeal, Douglas must obt ain a COA. 28 U.S.C. § 2253(c)(1). To obtain a COA, a petitioner must make “a substa ntial showing of the denial of a constitutional right .” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant must demonstrat e ‘that reasonable jurists coul d debate whether . . . the petition should have been resolved in a differe nt manner or that issues presented were adequate to deserve encourag ement to proceed further.’” Allen v. Zavaras , 568 F.3d 1197, 1199 (10th Ci r. 2009) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). “Where a district court has rejected the c onstitutional claims on th e merits . . . [t]he petitioner must demonstrate th at reasonable jurists would find the district court’s assessment of the constitutiona l claims debatable or wrong.” Slack , 529 U.S. at 484. Here, the issue is whether Douglas received ineffective assistance of direct-appeal counsel under Strickland v. Washington , 466 U.S. 668, 687 (19 84) when his directappeal counsel allegedly inadequately briefed his Brady CAD report claim before the
OCCA. 2
The Antiterrorism and Effective Death Penalty Act (AEDPA) limits our review of claims decided by the state court on the merits. See 28 U.S.C. § 2254(d)(1), (2). We evaluate the state-court decision to s ee if it is “contrary to, or involves an unreasonable application of, cl early established Federal la w, as determined by the Supreme Court of the United States; or re sulted in a decision th at was based on an

2 Douglas “abandon[ed] his claims with re spect to the recusal of the state trial judge and the failure to submit the ne ws channel segment on Oklahoma stop and identify laws or the traffic stop tape.” Appellant’s Opening Br. at 24 n.6.7 unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding.” Id. ; see Snow v. Sirmons , 474 F.3d 693, 696 (10th Cir. 2007). The OCCA resolved Douglas’s Strickland claim on the merits, determ ining that “[t]here is nothing in this case to indi cate . . . had appellate counsel argued the issue differently on appeal it would have changed the result of his appeal. . . . Cont rary to Petitioner’s claims, appellate counsel t horoughly litigated these claims in Petitioner’s direct appeal.” R. vol. 1 at 90. So we review Douglas’s claim as di rected by § 2254(d)(1) and (2). Strickland governs ineffective-a ssistance-of-counsel claims, including those complaining of appellate counsel’s performance. Hooks v. Ward , 184 F.3d 1206, 1221 (10th Cir. 1999). When a petitioner alleges that his appellate counsel ineffectively assisted him by failing to raise an issue, “w e look to the merits of the omitted issue.” Id. Now represented by counsel in the instant habeas appeal, Douglas contends that the magistrate misunderstood his claim, na mely, that his direct-appeal counsel had inadequately briefed the Brady CAD report issue, not that his directappeal counsel fail ed to raise it. But Douglas didn’t make this inadequa te-briefing argument to the district court. In Douglas’s pro se federal habeas petition, he contended th at his direct-appeal counsel had ineffectively as sisted him by “not submitti ng” the CAD report to the OCCA, which we construe to mean that his direct-appeal couns el didn’t raise the Brady CAD report issue. R. vol. 1 at 11. Th e argument that direct-appeal counsel failed to “submit” the CAD report isn’t an argument th at direct-appeal counsel8 inadequately briefed the Brady CAD report issue. So we see no debatable legal issue concerning the magistrate judge’s recommendation that Douglas’s Strickland claim must fail because direct-app eal counsel didn’t omit the Brady argument. Nor could Douglas challenge the adequ acy of direct-appeal counsel’s briefing on the Brady CAD report issue. In the brief, dire ct-appeal counsel alleged that “[t]he CAD report conflicted with the officers’ trial testimony, a nd had it been disclosed to the defense prior to trial, it could have been used to imp each the officers.” Id. at 54. Douglas’s present argument is the same —that the CAD report wasn’t disclosed before trial, keeping him from using it to impeach Sergeant Cadena and Sergeant Furrh. So the district court properly conc luded that Douglas’s direct-appeal counsel had raised the Brady CAD report issue—and absent an omitted issue to review on the merits—the district court pr operly determined that the OCCA didn’t make a decision contrary to controlling law. 3

3 Douglas also requests a 28 U.S.C. § 2254(e) evidentiary hearing on the question of whether the State disclosed the CAD report before trial. But because he hasn’t proven “by clear and convincing evidence that but for constitutional error, no reasonable factfinder woul d have found the applicant guilty of the underlying offense,” such a hearing isn’t wa rranted. 28 U.S.C. § 2254(e)(2)(B); see also R. vol. 2 at 455 (CAD report showing two inquirie s entered by Sergeant Cadena on the day of the traffic stop, one for Long and one for Douglas).9 CONCLUSION We deny Douglas a COA a nd dismiss this appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge