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

                                   TENTH CIRCUIT                              November 17, 2016

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 LOGAN ADAM DEATON,

               Petitioner - Appellant,
 v.                                                           No. 16-6204
                                                      (D.C. No. 5:13-CV-01052-R)
 JIM FARRIS, Warden,                                        (W.D. Oklahoma)

               Respondent - Appellee.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.



       Logan Adam Deaton, an Oklahoma state prisoner proceeding pro se, applies for a

certificate of appealability (COA) to challenge the district court’s order denying his

motion for writ of habeas corpus brought under 28 U.S.C. § 2254. He also seeks

permission to proceed in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C.

§ 1291, we deny Mr. Deaton’s application for a COA and dismiss the appeal. In addition,

we grant his motion to proceed IFP.




       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
                                      BACKGROUND

       On December 4, 2008, a jury found Mr. Deaton guilty of First Degree Rape, and

the trial court sentenced him to twenty-five years’ imprisonment. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed Mr. Deaton’s conviction on direct appeal in a

decision entered on September 22, 2010.

       On May 6, 2011, Mr. Deaton filed an Application for Post-Conviction Relief. On

February 15, 2012, the state trial court denied Mr. Deaton’s claims for relief, with the

sole exception that it granted him an evidentiary hearing on a claim based on newly

discovered evidence. But after conducting that hearing on April 5, 2012, the state trial

court denied relief on that claim as well, on July 13, 2012. The OCCA affirmed the state

trial court’s denial of post-conviction relief on June 6, 2013.

       On October 2, 2013, Mr. Deaton filed a pro se application for a writ of habeas

corpus in the federal district court under 28 U.S.C. § 2254. Mr. Deaton subsequently

amended the application, raising nine claims: (1) prosecutorial misconduct deprived him

of a fundamentally fair trial; (2) the state trial court deprived him of the right to present a

defense by limiting cross-examination of the victim; (3) admission of unduly prejudicial

photographs deprived him of a fundamentally fair trial; (4) failure to properly instruct the

jury on the elements of rape deprived him of a fair trial; (5) judicial misconduct deprived

him of a fair trial; (6) trial counsel performed ineffectively by failing to seek a change in

venue; (7) appellate counsel performed deficiently on direct appeal by failing to raise an

ineffective assistance of trial counsel claim based on the decision to call Mr. Deaton as a

witness in his own defense; (8) newly discovered evidence requires reversal of his


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conviction; and (9) appellate counsel performed ineffectively by failing to raise certain

unidentified issues on direct appeal. The district court ordered the state to file a response,

which the state filed on March 21, 2014. The district court then referred the matter to the

magistrate judge for initial review.

       The magistrate judge issued a thirty-two page Report and Recommendation

(R&R), suggesting that the application be denied on the merits on all claims. The R&R

first determined that all nine claims in the application had been fully exhausted, either on

direct appeal or post-conviction proceedings in the state court. The R&R then considered

the merits of each claim and concluded that Mr. Deaton had failed to demonstrate that the

OCCA had made determinations on the issues that were contrary to or an unreasonable

application of federal law. The district court adopted the R&R and accordingly denied

Mr. Deaton’s application for habeas relief, and it entered final judgment on June 21,

2016. Neither the district court order nor the judgment address whether Mr. Deaton is

entitled to a COA. On appeal, Mr. Deaton has abandoned his third claim—that the

admission of unduly prejudicial photographs deprived him of a fundamentally fair trial—

but he seeks a COA on all his other claims.




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                                       DISCUSSION

       To appeal from the district court’s denial of habeas relief under 28 U.S.C. § 2254,

Mr. Deaton must first obtain a COA from this court. See 28 U.S.C. § 2253(c)(1)(A)

(providing that “[u]nless a circuit justice or judge issues a certificate of appealability, an

appeal may not be taken to the court of appeals from . . . the final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a

State court”). And we will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 

To meet that burden,

Mr. Deaton must establish 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, 

, 483–84 (2000) (internal quotation marks omitted). Applying

that standard to each of Mr. Deaton’s claims, we conclude that he cannot meet that

burden. Accordingly, we deny his request for a COA and dismiss this appeal.

                                 A. Prosecutorial Misconduct

       Mr. Deaton identifies three separate bases for his claim of prosecutorial

misconduct. First, he contends that the state prosecutor introduced evidence of a prior

felony conviction that the state trial court had ruled inadmissible in a pre-trial ruling in

limine. Second, he argues that the prosecutor improperly appealed to the jury’s sympathy

for the victim during closing argument. And third, he argues it was prosecutorial

misconduct for the state prosecutor to “consol[e] the alleged victim and then parade[] her

in front of the jury.” In a summary opinion on direct appeal, the OCCA disagreed,


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holding that the state “trial court’s admonitions to the jury cured the alleged errors” and

their cumulative effect did not deprive Mr. Deaton of a fair trial. On habeas review, the

magistrate judge considered the same issues in the R&R, albeit in more depth, and

concluded Mr. Deaton had failed to demonstrate that the OCCA’s determination was

contrary to or an unreasonable application of clearly established federal law.

       In seeking a COA from this court, Mr. Deaton claims that “[t]his conduct, when

viewed in the whole, completely prejudiced the Petitioner, denied him a fair trial, and the

District court’s decis[]ion to the contrary is unreasonable.” We disagree. Petitioners

claiming a violation of their constitutional right to a fair trial must show that the

prosecution’s conduct “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 

, 643

(1974). This requires an “examination of the entire proceedings” in the case, 

court must take “notice of all the surrounding circumstances, including the strength of the

state’s case.” Patton v. Mullin, 

, 811 (10th Cir. 2005).

       First, as to the prosecution’s question regarding Mr. Deaton’s prior child abuse

conviction, there is a lingering question whether it was even inappropriate, given that (1)

Mr. Deaton placed his credibility at issue, and (2) the state trial court ruled in a post-trial

motion that “the State was entitled to impeach with th[e] prior conviction.” Moreover,

Mr. Deaton never responded to the question, and the trial court felt a curative instruction

would suffice—a determination which is entitled to “special respect.” Arizona v.

Washington, 

, 510 (1978). In seeking a COA from this court, Mr. Deaton

argues that “common sense makes us aware that the jury heard this information and what


                                               5
they heard cannot simply be unheard.” But he fails to explain why the evidence was

inadmissible, or to demonstrate any prejudice after the curative instruction was given,

which is particularly problematic in light of this court’s recognition that “juries are

presumed to follow curative instructions.” United States v. Morgan, 

, 1042

(10th Cir. 2014).

       Second, Mr. Deaton claims the prosecutor’s comments during closing arguments

were improper because they “not only appealed to the sympathy of the alleged victim, but

these same comments were poised in such a way as to be presented as personal beliefs of

guilt by the State.” Specifically, the prosecutor commented that the victim required

counseling and that the jury should consider a minimum of 25 years on each count. But,

as the magistrate judge explained, the defense never objected, and these comments were a

limited, and reasonable, response to the defense attorney’s own call to sympathy for Mr.

Deaton. Defense counsel argued in closing that Mr. Deaton was just a “youngster,” that if

found guilty Mr. Deaton would have to live in a cell the size of a bathroom, and that Mr.

Deaton would have to register as a sex offender with that “scarlet letter the rest of [his]

life.” See Matthews v. Workman, 

, 1189 (10th Cir. 2009) (“[I]f the

prosecutor’s remarks were ‘invited,’ and did no more than respond substantially in order

to ‘right the scale,’ such comments would not warrant reversing a conviction.” (quoting

United States v. Young, 

, 13 (1985))).

       And finally, Mr. Deaton claims the prosecution “paraded [the victim] in front of

the jury” in the hallway during a break in the trial in an attempt to gain the jurors’

sympathy. The prosecution did lead the victim to a sheltered area of the hallway during


                                              6
the break, but Mr. Deaton has presented no evidence that any juror actually saw this

occur. And even assuming the jurors did see it occur, the trial court gave a sufficient

curative instruction, and Mr. Deaton has not demonstrated how this isolated incident

rendered his trial fundamentally unfair.

       In sum, reasonable jurists could not debate that the petition should have been

resolved differently on this issue. Mr. Deaton has failed to demonstrate how the

prosecution’s conduct prejudiced the outcome of the trial, especially in light of the

defense’s own comments and the state trial court’s curative instructions. Because Mr.

Deaton has failed to make a substantial showing of the denial of a constitutional right, we

deny a COA on this claim.

                       B. Sixth Amendment Confrontation Clause

       Next, Mr. Deaton argues that the trial court “prevent[ed] the defense from eliciting

information from the alleged victim concerning her mental state after the alleged crime,”

in violation of his Sixth Amendment right to confrontation. “The Sixth Amendment

provides a right to confrontation, but trial judges can still impose reasonable limits on

cross-examination.” In re Harper, 

, 1260 (10th Cir. 2013) (citing Delaware

v. Van Arsdall, 

, 679 (1986)). As the magistrate judge acknowledged,

“[t]hese limits include relevance and materiality.” 

claims the trial court

erroneously precluded the defense from asking about the victim’s mental state and

substance abuse in the time period after the alleged rape, including the fact that she had

been admitted to a mental institution. The OCCA considered this claim on direct appeal

and summarily concluded the state trial court did not abuse its discretion in limiting the


                                              7
cross-examination. On habeas review, the magistrate judge rejected the claim, noting that

Mr. Deaton was allowed to question the victim regarding many subjects bearing on her

state of mind, including her prior substance abuse, self-harm, and mental illness.

         In seeking a COA, Mr. Deaton cursorily concludes that the questioning was

relevant, but he fails to cite to any legal precedent or other authority suggestive that the

state trial court’s limitations constituted an abuse of discretion, much less that they

violated his Sixth Amendment right to confrontation. We therefore deny a COA on this

claim.

                                      C. Jury Instructions

         Mr. Deaton’s third claim is that the state trial court did not properly instruct the

jury on the elements of the crime of rape. Specifically, he argues “[t]he instruction given

by the state court allowed the jury to find the Petitioner guilty of rape where ‘force, and

violence was used against the victim,” but that the instruction should have “include[d] the

element of consent.” On direct appeal, the OCCA determined that “the giving of the

Uniform Instructions on the elements of rape was sufficient to encompass [Mr. Deaton’s]

proffered defense of consent. The elements of rape specifically exclude the possibility

that the intercourse was consensual, and the instruction is substantially in the language of

the rape statutes.” The magistrate judge agreed, concluding that Mr. Deaton was not

entitled to habeas relief based on any alleged error in the state trial court’s interpretation

of state law, and that Mr. Deaton had failed to show that the failure to include a separate

element of consent rendered the trial fundamentally unfair.




                                                8
         In seeking a COA from this court, Mr. Deaton again fails to demonstrate how the

instruction denied him his right to a fair trial, so we deny a COA on this claim as well.

“In habeas proceedings, we have a limited role in evaluating jury instructions. We only

look to determine if instructional errors ‘had the effect of rendering the trial so

fundamentally unfair as to cause a denial of a fair trial in a constitutional sense.’” White

v. Medina, 464 F. App’x 715, 719 (10th Cir. 2012) (quoting Shafer v. Stratton, 

, 508 (10th Cir. 1990)). As the magistrate judge explained, the instruction in this case

required a showing that “force/violence was used against the victim,” and should the jury

have determined the encounter to be consensual, no force would have been present. See

United States v. Martin, 

, 752 (10th Cir. 2008) (noting under a similar

federal rape statute that “the government was required to prove that force or serious

threat—and therefore not the victim’s consent—was the cause of the sex act. This is all

the proof of non-consent that the statute demands”). Despite Mr. Deaton’s arguments

otherwise, the State was not required to tailor the instructions to “the circumstances of the

case.”

                                  D. Judicial Misconduct

         Next, Mr. Deaton casts his prosecutorial misconduct claim in a new light—that is,

he claims it was judicial misconduct for the state trial court not to declare a mistrial after

the prosecution asked Mr. Deaton about his prior child abuse conviction. The state trial

court considered this claim during postconviction proceedings, deeming it to be

procedurally barred under principles of waiver or res judicata, a ruling from which Mr.

Deaton did not appeal. The magistrate judge considered the issue on habeas review,


                                               9
concluding that “Petitioner’s attempt to recast his prosecutorial misconduct claim as an

independent claim of judicial misconduct is futile” and that the record did not support a

claim of judicial bias. See McPherson v. Miers, 7 F. App’x 845, 849 (10th Cir. 2001)

(“[A]lleged violations of state codes of conduct are not cognizable in federal habeas.”

(citing Estelle v. McGuire, 

, 67 (1991))). We agree, and deny a COA on this

claim.

                 E. Ineffective Assistance of Trial and Appellate Counsel

         Mr. Deaton also seeks a COA on issues stemming from the alleged ineffective

assistance of his trial and appellate counsel. To demonstrate that his Sixth Amendment

right to the effective assistance of counsel was violated, Mr. Deaton must show both

deficient performance and prejudice. Strickland v. Washington, 

(1984). And

“[t]he very focus of a Strickland inquiry regarding performance of appellate counsel is

upon the merits of omitted issues.” Milton v. Miller, 

, 670 (10th Cir. 2014)

(internal quotation marks omitted). In claiming ineffective assistance of trial and

appellate counsel, Mr. Deaton raises several arguments. First, he claims his trial counsel

failed to seek a change of venue, given that the victim’s father is an attorney who

regularly appears in the same district where Mr. Deaton’s trial was held; Mr. Deaton

alleged that the victim’s father is corrupt and has close ties with the prosecution and/or

the judge, rendering a fair trial impossible. He also claims his appellate counsel was

ineffective by not urging on appeal that his trial counsel was ineffective for advising Mr.

Deaton to testify, in light of the chance the prior child abuse conviction might come in.




                                             10
And finally, he argues his appellate counsel failed to raise the judicial misconduct claim

(discussed above) during the direct appeal.

       The OCCA considered these claims during postconviction proceedings,

concluding (1) appellate counsel had raised the issue of judicial misconduct; and (2) the

claims of ineffective assistance of trial counsel did not present issues of “appellate merit,”

so appellate counsel was not ineffective for failing to raise them on appeal. The

magistrate judge reviewed these issues anew, concluding that AEDPA deference was

warranted on all claims except for the claim that appellate counsel had failed to raise the

issue of judicial misconduct on appeal. In the magistrate judge’s view, the determination

that judicial misconduct had been raised on direct appeal was not supported by the

record, so it reviewed the issue de novo. Nonetheless, the magistrate judge recommended

denying all of Mr. Deaton’s claims related to the ineffective assistance of counsel. As to

the change of venue issue, the judge determined the claim was frivolous because it was

premised on pure speculation: Mr. Deaton failed to “support the allegations about the

victim’s father with any facts.” As to trial counsel’s advice that Mr. Deaton testify, the

judge determined Mr. Deaton failed to show either deficient performance or prejudice,

and it cataloged all of the steps trial counsel undertook to prevent the child abuse

conviction from coming in. And finally, in reviewing the judicial misconduct claim de

novo, the judge determined that the substance of the claim was without merit.

       We turn first to the claim that trial counsel was ineffective for advising Mr.

Deaton to testify. In seeking a COA, Mr. Deaton claims his attorney did not understand

the law and directed his client in the wrong direction. Moreover, he claims prejudice is


                                              11
clear because the case came down to a credibility contest, and the child abuse allegation

“certainly would tip the scales toward a verdict of guilt.” But as the magistrate judge

aptly explained, counsel was careful in seeking a pretrial in limine ruling before advising

Mr. Deaton to testify, and counsel fought strenuously thereafter by objecting to the

prosecutor’s question and by seeking a mistrial. And as to prejudice, Mr. Deaton fails to

demonstrate how the result of the proceeding would have been different had trial counsel

not advised him to testify, which is a particularly glaring omission in light of Mr.

Deaton’s concession that it all “came down to a credibility contest.” Instead of addressing

the potential of a different outcome had he not testified, Mr. Deaton merely reiterates that

it was error for the prior conviction to be admitted—a claim we have addressed and

rejected above.

       As to Mr. Deaton’s ineffective assistance of appellate counsel claims, Mr. Deaton

fails to even remotely address the substance of the claims in his application for a COA.

He claims only that “should this court find merit in the omitted claims, [then ineffective

assistance of appellate counsel] should and must be found.” Regardless, we agree with

the magistrate judge that Mr. Deaton’s judicial misconduct claim is without merit and

that his venue claim is without any factual support. Accordingly, Mr. Deaton has failed to

make a substantial showing of the denial of a constitutional right, and we therefore deny a

COA on all of his ineffective assistance of counsel claims.

                              F. Newly Discovered Evidence

       Finally, Mr. Deaton claims there was newly discovered evidence presented during

postconviction proceedings that would have altered the outcome of the trial had it been


                                             12
presented. In essence, he raises a standalone actual innocence claim. But the Supreme

Court has concluded that “[c]laims of actual innocence based on newly discovered

evidence have never been held to state a ground for federal habeas relief absent an

independent constitutional violation occurring in the underlying state criminal

proceeding.” Herrera v. Collins, 

, 400 (1993); Case v. Hatch, 

, 1036 (10th Cir. 2013) (“[A]s yet, it is an open question whether such a federal right

exists.”). The magistrate judge flagged this problem in recommending denial of Mr.

Deaton’s habeas petition, but Mr. Deaton fails to address the issue in his application for a

COA before this court. He does not tie his actual innocence claim to ineffective

assistance of counsel or some other constitutional challenge.

       Moreover, even were we to consider the evidence, we agree with the magistrate

judge that it was cumulative evidence of impeachment. Mr. Deaton claims the testimony

of two witnesses—Nicole Gregory and Alice Katona—suggested he was innocent. Ryan

Gregory—Nicole’s brother—shared an apartment with the victim. Reportedly, the victim

told Ms. Gregory that Ryan Gregory had raped her on a previous occasion, and Ms.

Gregory testified she thought her brother had again raped the victim on the night in

question. She also challenged the victim’s credibility, claiming the victim’s allegations of

rape were “just happening way too much. Everyone is forcing her to have sex with

them.” But the victim never told Ms. Gregory that Mr. Deaton did not rape her on the

night in question.

       Alice Katona, who is the grandmother of Ryan Gregory and Mr. Deaton, also

testified. She claimed Ryan Gregory had admitted to beating up the victim on the night in


                                             13
question and that she had heard about Ryan Gregory’s violence toward the victim and the

victim’s substance abuse problems. At no time did Ryan Gregory admit to raping the

victim.

       Even were we to credit the witnesses’ testimony, “[t]he evidence which [Mr.

Deaton] asserts as newly discovered evidence barely aids his case and is merely

impeaching evidence that would not cause a rational person to doubt [his] guilt.” Clayton

v. Gibson, 

, 1180 (10th Cir. 1999), holding modified by McGregor v.

Gibson, 

(10th Cir. 2001). We therefore deny a COA on Mr. Deaton’s actual

innocence claim.

                                      G. IFP Status

       As a final matter, Mr. Deaton has filed a motion to proceed IFP on appeal.

Prisoners seeking IFP status in a habeas action must demonstrate “a financial inability to

pay the required fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n,

, 812 (10th Cir. 1997). We agree that Mr. Deaton has demonstrated a

financial inability to pay and that his arguments are not frivolous. Accordingly, Mr.

Deaton’s motion to proceed IFP on appeal is granted.




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                                   CONCLUSION

      Because Mr. Deaton fails to make a substantial showing of the denial of a

constitutional right, we DENY his request for a COA and DISMISS the appeal. We also

GRANT Mr. Deaton’s motion to proceed IFP on appeal.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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