FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           February 4, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 CURTIS EUGENE HORTON,

           Petitioner-Appellant,

 v.                                                         No. 12-6116
                                                     (D.C. No. 5:11-CV-00401-F)
 TERRY MARTIN, Warden,
                                                            (W.D. Okla.)
           Respondent-Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, EBEL and MURPHY, Circuit Judges.


       Defendant-Appellant Curtis Eugene Horton, an Oklahoma state prisoner

proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal the

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We GRANT

Horton IFP status but, having carefully reviewed the record and Horton’s arguments, we

conclude that Horton has failed to make a substantial showing of the denial of a




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
constitutional right. We therefore DENY his request for a COA and DISMISS this

appeal.

                                      BACKGROUND

       Horton was convicted in Oklahoma state court of assault and battery with a deadly

weapon and sentenced to thirty-five years’ imprisonment after he shot and seriously

wounded his estranged wife during a confrontation. The Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed Horton’s conviction. Horton then filed his § 2254 habeas

petition in the United States District Court for the Western District of Oklahoma, seeking

relief on six grounds. The district court denied Horton’s petition and ruled that Horton

was not entitled to a COA.1 Horton raises only one issue on appeal: whether “the district

court erred in its decision relating to [his] argument that the interjection of hearsay

testimony [at trial] violated his rights under the Confrontation Clause.”2 Aplt. Br. at 1.


1
        Consistent with 28 U.S.C. § 636(b)(1)(B) & (C), the district court referred
Horton’s case to a magistrate judge for initial proceedings. The magistrate judge drafted
a thorough report and recommendation addressing each of Horton’s claims, and the
district court adopted the magistrate judge’s report in its entirety. Accordingly, this
Order’s discussion of the district court’s reasoning actually refers to the magistrate
judge’s report and recommendation.
2
        Horton attempts to invoke three additional issues in his Combined Opening Brief
and Application for a COA: (1) that “the district court’s decision on his claims relating to
the ineffective assistance of his trial attorney was in error”; (2) that “the district court’s
decision regarding the excessiveness of his sentence was in error”; and (3) that “the
district court’s decision regarding the cumulative trial court errors was incorrect and
unreasonable.” Aplt. Br. at 1. However, Horton provides no argument or authority for
any of those assertions; he dedicates his entire pro se brief to his Confrontation Clause
claim. Accordingly, we limit our review to that claim. See Drake v. City of Fort Collins,

, 1159 (10th Cir.1991) (“Despite the liberal construction afforded pro se
                                                                                  Continued . . .
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                                       DISCUSSION

                                  I. Standard of Review

       This Court lacks jurisdiction to consider the merits of a habeas appeal unless we

grant the applicant a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2). “This standard requires an applicant to show 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 . . . .” Yang v. Archuleta, 

, 928 (10th Cir. 2008) (citing

Slack v. McDaniel, 

, 484 (2000)). And where, as in this case, the state court

addressed the merits of the applicant’s claims, the Anti-Terrorism and Effective Death

Penalty Act’s (“AEDPA’s”) “deferential treatment of state court decisions must be

incorporated into our consideration of a . . . petitioner’s request for COA.” Dockins v.

Hines, 

, 937-38 (10th Cir. 2004). Under AEDPA, habeas relief is available

if the state court’s 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).



pleadings, the court will not construct arguments or theories for the plaintiff in the
absence of any discussion of those issues.”).


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                                 II. Confrontation Clause

       Horton argues, as he did before the OCCA and the district court, that his

Confrontation Clause rights were violated when the trial court permitted the prosecution

to cross-examine Horton’s character witness with “police reports and affidavits,” when

“[n]either the alleged victim [n]or the law enforcement officer who prepared the report

was called to testify to the validity of the information contained within the report.” Aplt.

Br. at 3; Aplt. App. at 8-9. Horton contends that, in a “thinly veiled effort to skirt the

rules against hearsay,” the prosecution used the police report to “attempt[] to prove that

Appellant actually committed the alleged acts” contained therein.3 Aplt. Br. at 4. Horton

argues that the introduction of this “testimonial hearsay” evidence violated clearly

established Supreme Court precedent as dictated by Crawford v. Washington, 

, 52 (2004) (“Statements taken by police officers in the course of interrogations are . . .

testimonial . . . .”), and Davis v. Washington, 

, 822 (2006) (“Statements are .

. . testimonial when the circumstances objectively indicate that . . . the primary purpose

of [an] interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.”).



3
       Horton also complains that the “information on that incident was supposed to have
been sealed and expunged upon Appellant remaining trouble-free for a period of 90 days,
which Appellant successfully completed.” Aplt. Br. at 2-3. However, Horton fails to
provide any authority holding that such a fact is legally relevant to his Confrontation
Clause claim, and we find no authority for this proposition to be immediately apparent.


                                               4
       The OCCA rejected Horton’s argument, holding that the prosecution’s use of the

police report during cross-examination was permissible as “a proper method of

impeaching [Horton’s] character witness.” Doc. 7-3 at 10. The district court agreed,

noting that the Confrontation Clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted,” Crawford, 541 U.S. at

59 n.9, and that the prosecutor was not attempting “to prove that Petitioner actually

committed the alleged acts” contained in the police reports, but rather “to impeach

Petitioner’s character witness who had just testified to Petitioner’s non-violent nature,”

Mag. Op. at 10; accord Davis, 

, 823 (holding that the Confrontation Clause

applies only to testimonial hearsay); United States v. Faulkner, 

, 1226

(10th Cir. 2006).

       We conclude that the OCCA’s disposition of Horton’s Confrontation Clause claim

was not contrary to, nor did it involve an unreasonable application of, clearly established

federal law. The Supreme Court cases Horton invokes stand for the proposition that

introduction of testimonial hearsay without an opportunity for cross-examination violates

the Confrontation Clause; Horton points to no authority suggesting that the OCCA’s

adjudication of his Confrontation Clause claim (which was predicated only on a

prosecutor’s questions attempting to impeach a character witness) contradicted or

unreasonably applied that or any other principle of clearly established federal law.

Additionally, after careful review of the record before us, we cannot say that the OCCA’s


                                             5
conclusion “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(1) & (2).

                                    CONCLUSION

      Therefore, we GRANT Horton’s motion to proceed IFP, but we DENY his request

for a COA and DISMISS this appeal.




                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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