FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

May 28, 2014

Elisabeth A. Shumaker
Clerk of Court

DANIEL COLE JAMES,

Petitioner - Appellant,
v.
TERRY MARTIN, Warden,

No. 14-5001
(D.C. No. 4:11-CV-00010-TCK-FHM)
(N.D. Okla.)

Respondent - Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

Daniel James, a state prisoner proceeding pro se,1 seeks a certificate of
appealability (COA) to appeal the district courts order denying his petition for a writ
of habeas corpus under 28 U.S.C. 2254. See 28 U.S.C. 2253(c)(1) (requiring a COA
to appeal the denial of a habeas application). Exercising jurisdiction under 28 U.S.C.
1291, we deny a COA and dismiss this matter.
*This order is not binding precedent, except under the doctrines of law of the case,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. App. P. 32.1 and 10th Cir. R. 32.1.]
1

Because Mr. James is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). [T]his rule of liberal
construction stops, however, at the point at which we begin to serve as his advocate.
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

I. BACKGROUND
A Tulsa County District Court convicted Mr. James of Rape by Instrumentation
and Lewd Molestation for sexually abusing a four-year-old girl. On direct appeal, the
Oklahoma Court of Criminal Appeals (OCCA) reversed his conviction because the trial
court failed to give proper jury instructions regarding testimony concerning Mr. Jamess
prior child molestation acts. See James v. Oklahoma (James I), 152 P.3d 255, 257 (Okla.
Crim. App. 2007). Shortly thereafter, Oklahoma enacted Okla. Stat. tit. 12, 2413 and
2414, making evidence of sexual offenses admissible for any relevant purpose.
Oklahoma tried and convicted Mr. James again, and the OCCA affirmed. See James v.
Oklahoma (James II), 204 P.3d 793 (Okla. Crim. App. 2009). Mr. James then applied for
post-conviction relief in Tulsa County District Court, which denied relief. He appealed
to the OCCA, which affirmed.
Mr. James petitioned the U.S. District Court for the Northern District of Oklahoma
for a writ of habeas corpus. It denied his petition and a COA. As to four of Mr. Jamess
claimsinsufficiency of the evidence, Confrontation Clause violation, the trial courts
improper communication with the jury, and ineffective assistance of trial counselthe
district court concluded they were procedurally barred because Mr. James failed to raise
them before the OCCA on direct appeal and post-conviction relief. As to Mr. Jamess
remaining two claimsthe admission other crimes evidence and ineffective assistance
of appellate counselthe district court denied relief.

-2-

II. DISCUSSION
Mr. James seeks a COA on four constitutional claims: (1) a due process violation
for admission of testimony concerning prior sex abuse; (2) a Sixth Amendment
ineffective assistance of counsel violation for his appellate counsels failure to argue the
prosecution knowingly infringed his Confrontation Clause rights; (3) a due process
violation for the prosecutions failure to prove guilt beyond a reasonable doubt; and (4) a
Confrontation Clause violation for admission of hearsay.2
The OCCA decided the first two issues on the merits; they therefore are reviewed
for federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Mr. James did not ask the OCCA to review the last two claims and does not
challenge the district courts determination that they are procedurally barred.
A COA is a jurisdictional prerequisite to appeal from a district courts denial of a
2254 habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When a
state court has decided the petitioners claim on the merits, we look to the District
Courts application of AEDPA to petitioners constitutional claims and ask whether that
resolution was debatable among jurists of reason. MillerEl, 537 U.S. at 366. AEDPA
provides that federal courts cannot grant habeas relief unless the state courts decision
2

Mr. James attempts to seek a COA on a fifth issue by saying the district court
should not have denied his prosecutorial misconduct claim. But his 2254 petition did
not include such a claim separate from his claim that appellate counsel should have raised
prosecutorial misconduct on direct appeal. The district court rejected that claim, and we
address it here, but Mr. James cannot obtain a COA for a claim not presented to the
district court.
-3-

was contrary to, or involved an unreasonable application of, clearly established 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 light of the evidence
presented in the State court proceeding, id. 2254(d)(2).
To obtain a COA when the district court has denied habeas relief on procedural
grounds, the petitioner must show that jurists of reason would find it debatable [(1)]
whether the petition states a valid claim of the denial of a constitutional right and . . .
[(2)] whether the district court was correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000).
A. Claims the OCCA Adjudicated On the Merits
1. Admission of other crimes evidence
Mr. James argues the state trial court violated his due process rights by admitting
evidence that he had sexually abused another child.
a. Additional background
At the first trial, the judge allowed a witness to testify that Mr. James had sexually
abused her in 1992 when she was three years old. On appeal, the OCCA reversed Mr.
Jamess conviction and remanded for a new trial because the abuse allegations
constituted improper propensity evidence. See James I, 152 P.3d at 257.
A few months later, the Oklahoma legislature enacted Okla. Stat. tit. 12, 2413
and 2414, patterned after Federal Rules of Evidence 413 and 414. Section 2414 states:
In a criminal case in which the defendant is accused of an offense of child molestation,
-4-

evidence of the defendants commission of another offense or offenses of child

molestation is admissible, and may be considered for its bearing on any matter to which it
is relevant. Okla. Stat. tit. 12, 2141. Once again, Oklahoma tried Mr. James, the trial
judge admitted the testimony about the 1992 abuse, and a jury convicted Mr. James.
He appealed to the OCCA, arguing in part that the trial courts admission of this
evidence violated his constitutional right to due process and a fundamentally fair trial.
The OCCA concluded, in light of 2414, the trial court properly admitted the evidence
because its probative value outweighed any unfairly prejudicial effect. See James II, 204
P.3d at 796. It determined the 1992 allegations showed a visible connection with the
instant charges, and demonstrated a common scheme to take sexual advantage of very
young girls that were placed in his trust and care. Id. at 798. In addition, the trial court
cautioned the jury on the limited use of such evidence more than once. Id.3 Mr. James
did not raise this issue in his post-conviction petition before the OCCA.
On federal habeas review, the district court determined Mr. James was not denied
due process or a fair trial because in his second trial, unlike in his first trial, the court
instructed the jury not to use the evidence as proof of guilt.

The OCCA did not expressly state there was no violation of Mr. Jamess due
process rights. However, [w]hen a state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits . . . . See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013)
rehg denied, 133 S. Ct. 1858 (U.S. 2013). Mr. James has made no argument to rebut this
presumption.
-5-

b. Analysis
In his request for COA, Mr. James argues the evidence was inadmissible because,
even under 2414, propensity evidence must be established by clear and convincing
evidence. Aplt. Br. at 10 (quoting Horn v. State, 204 P.3d 777, 786 (Okla. Crim. App.
2009)). He contends the 1992 allegations were not established by clear and convincing
evidence because the OCCA in his first direct appeal determined that the only witness
testifying about the allegations was not credible. Id. at 12; see also James I, 152 P.3d
at 257. He then argues the trial court, the OCCA (on second direct appeal and on postconviction review), and the federal district court all ignored the OCCAs credibility
finding, thus violating his right to due process and a fundamentally fair trial. This
argument fails because the OCCA made no such credibility finding.
On the first direct appeal, the OCCA stated:
The other crimes evidence in this case was extensive
and prejudicial. It was thirteen years old, the allegations
never resulted in filed charges, and there were credibility
issues. To some extent the evidence was improperly used as
substantive proof of Jamess guilt of the charged crimes. The
jury was not properly instructed on its limited use.
James I, 152 P.3d at 257. The OCCA reversed Mr. Jamess first conviction based on the
trial courts failure to instruct the jury on the proper use of the evidence. Id. The
OCCAs reference to credibility issues was not a credibility finding.
More fundamentally, Mr. James has not made a substantial showing of the denial
of a constitutional right. 28 U.S.C. 2253(c)(1)(A). He has not shown that the
-6-

OCCAs decision on the admission of the 1992 sexual abuse evidence was contrary to,
or involved an unreasonable application of clearly established Supreme Court precedent.
28 U.S.C. 2254(d)(1).
We conclude that jurists of reason could not disagree with the district courts
denial of habeas relief on this issue.
2. Ineffective assistance of appellate counsel
Mr. James argues his appellate counsel was ineffective. He contends the
prosecutor committed misconduct at trial by knowingly violating his Confrontation
Clause rights and his appellate counsel should have raised this issue on appeal.
An ineffective assistance of counsel claim requires a showing that (1) counsels
representation fell below an objective standard of reasonableness, Strickland v.
Washington, 466 U.S. 668, 687-88 (1984), and (2) the deficient performance prejudiced
the defense, id. at 694.
a. Additional background
On direct appeal, the OCCA did not decide Mr. Jamess claim of prosecutorial
misconduct because it thought the issue was not sufficiently argued. See James II, 204
P.3d at 798 n.10. In post-conviction proceedings, Mr. James argued his appellate counsel
was ineffective for failing to raise prosecutorial misconduct on direct appeal. The OCCA
determined Mr. James failed to show prejudicethat any deficient performance changed
the outcome of his appeal. See Response in Opposition to Petition for Writ of Habeas
Corpus, Exh. 6 at 2-3, James v. Martin, No. 4:11-CV-00010-TCK-FHM (N.D. Okla.
-7-

Mar. 21, 2011), ECF No. 8 (OCCA Order Affirming Denial of Application for Postconviction Relief).
Reviewing Mr. Jamess habeas petition, the federal district court decided appellate
counsel was not ineffective because Mr. Jamess Confrontation Clause rights were not
violated at trial, where the prosecutor asked Mr. Jamess wife, Kellie James, about a
statement from his former wife, Glenda Kyser: Isnt it true maam that Glenda Kyser
told you, warned you when you got together with Mr. James that you better watch out for
any kids that you have because of sexual abuse? ROA, Vol. I at 26 (quoting transcript
from second trial). Ms. James denied having that conversation with Ms. Kyser. Id. Mr.
James argued in his petition that because Ms. Kyser was not at trial for [him] to confront
or cross-examine in open court, the prosecutors question violated his Confrontation
Clause rights. Id.
The district court determined the prosecutors question was not testimonial and
therefore did not implicate the Confrontation Clause. See Crawford v. Washington, 541
U.S. 36, 51 (2004) (holding the Confrontation Clause applies only to testimonial
statements). The district court concluded appellate counsel could not have been
ineffective because there was no statement that was testimonial, and therefore there was
no Confrontation Clause violation and no prosecutorial misconduct.4

The district court also determined that Mr. Jamess counsel sufficiently argued
prosecutorial misconduct on direct appeal, despite the OCCAs conclusion to the
contrary.
-8-

b. Analysis
We agree with the district courts conclusion. No out-of-court statement was
admitted. The prosecutor asked about what an absent declarant may have said, and the
witness denied even having the conversation. There was no statement admitted from a
missing witness, no prosecutorial misconduct, and nothing for appellate counsel to
appeal. Reasonable jurists would not debate the district courts denial of the ineffective
assistance claim.
B. Claims the OCCA Did Not Adjudicate
Mr. James seeks a COA for Confrontation Clause and insufficiency of the
evidence claims. The district court determined these claims are procedurally barred
because he failed to raise them before the OCCA either on direct appeal or in postconviction proceedings. In his request for COA, Mr. James does not challenge the
district courts procedural bar ruling. Instead, he argues the merits. We therefore deny
COA on these claims.
III. CONCLUSION
For the foregoing reasons, we deny Mr. Jamess petition for a COA and dismiss
this matter.
ENTERED FOR THE COURT

Scott M. Matheson, Jr.

Circuit Judge
-9-