FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     April 27, 2010
                                  TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                     Clerk of Court



 GARY LEE WADDEL,

          Petitioner-Appellant,
                                                         No. 09-6241
 v.                                              (D.C. No. 5:08-CV-00873-W)
                                                       (W. Dist. Okla.)
 JUSTIN JONES,

          Respondent-Appellee.




                                     ORDER *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.


      Mr. Gary L. Waddel seeks a certificate of appealablity (COA) to appeal the

district court’s denial of his petition for habeas relief. He also seeks leave to

proceed in forma pauperis on appeal. 1 Affording the Oklahoma Court of Criminal

Appeals (OCCA) the deference it is due under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), we deny his requests

and dismiss this appeal.

      *
       This order is not binding precedent, except under the doctrines of law of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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
      1
          We grant Mr. Waddel’s request to file his Supplemental Brief.
      In three consolidated state court cases, Mr. Waddel was convicted of and

sentenced for possession of a controlled substance, two kidnaping charges

involving different victims, rape, and unauthorized use of a motor vehicle. The

OCCA affirmed his conviction on direct appeal. He filed a petition for state post-

conviction relief which was denied at the trial court level but not appealed.

      On August 19, 2008, Mr. Waddel filed pro se the instant petition for habeas

relief pursuant to 28 U.S.C. § 2254. His petition specifically alleged four grounds

for relief: the evidence was insufficient to support the verdict; the trial court

committed reversible error by admitting an in-court identification of him

subsequent to an allegedly tainted pretrial photo line-up; his incriminating

statements were obtained in violation of his Fourth Amendment rights; and the

trial court erred in admitting police reports into evidence. Construed liberally as

required by Hall v. Bellmon, 

, 1110 (10th Cir. 1991), his petition

also alleged constitutionally deficient performance by attorney Michael

Gassaway, his counsel at trial and on appeal.

      The government moved to dismiss the petition for failure to exhaust state

remedies. A magistrate judge recommended that Mr. Waddel’s petition be stayed

pending exhaustion of his state court remedies. The district court agreed, denied

the motion to dismiss, and administratively closed the case subject to Mr. Waddel

exhausting his state court remedies.

      On February 24, 2009, Mr. Waddel filed a motion to resume jurisdiction.

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The magistrate judge issued a supplemental Report and Recommendation (R&R)

applying AEDPA and recommending denial of the petition. The district court

adopted the R&R, denied the petition, and denied Mr. Waddel’s request for a

COA.

       A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). This standard requires

“a demonstration that . . . includes showing 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, 

, 484 (2000)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” 

OCCA addressed both Mr. Waddel’s ineffective assistance

claim and his sufficiency of the evidence challenge on the merits, “AEDPA’s

deferential treatment of state court decisions must be incorporated into our

consideration of his request for [a] COA.” Dockins v. Hines, 

, 938

(10th Cir. 2004). AEPDA provides that when a claim has been adjudicated on the

merits in a state court, a federal court can grant habeas relief only if the applicant

establishes that the state-court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

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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,” 

As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 

, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” 

internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state court decision

applied clearly established federal law erroneously or incorrectly. See 

application must have been unreasonable.

      In his request for a COA, Mr. Waddel first asserts ineffective assistance of

counsel at trial and on appeal. See Aplt. Br. at 3. To prevail on his ineffective

assistance claim, Mr. Waddel must show that “(1) his counsel’s performance was

constitutionally deficient, and (2) counsel’s deficient performance was

prejudicial.” United States v. Cook, 

, 392 (10th Cir. 1995) (citing

Strickland v. Washington, 

, 687 (1984)). The OCCA reviewed this


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claim on the merits and rejected it on the basis that Mr. Waddel had failed to

satisfy his burden of proof. For the reasons set forth by the magistrate judge in

his very thorough R&R, we conclude that Mr. Waddel has not demonstrated that

the OCCA’s adjudication of this claim was an unreasonable application of the

Strickland standard.

      Construed liberally, we also read Mr. Waddel’s request for a COA to

challenge the sufficiency of the evidence underlying his conviction. See Aplt.

App. for COA at 3. Evidence is sufficient to sustain a conviction if, “‘after

viewing [it] in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.’” 

(quoting Jackson v. Virginia, 

,

319 (1979)). In addressing this challenge on direct appeal, the OCCA examined

the trial record, as well as the transcripts and briefs of the parties, and concluded

that in light of the abundance of evidence supporting conviction, “a rational trier

of fact could find, beyond a reasonable doubt, that Appellant kidnapped [sic.]

both victims and succeeded in raping one of them.” Rec., vol. I at 101. That

evidence included Mr. Waddel’s incriminating statements, positive identification

by both victims, and considerable circumstantial evidence as detailed by the

magistrate judge. Mr. Waddel has not demonstrated that the OCCA’s

determination was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

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United States.” See § 2254(d)(1).

         Mr. Waddel also raises a due process challenge to the state prosecutors’

alleged withholding of exculpatory DNA evidence under Brady v. Maryland, 

(1963), but this claim was not previously raised by Mr. Waddel, either in

state court or in the district court. We therefore decline to address the Brady

claim.

         Accordingly, we DENY Mr. Waddel’s petition for a COA and his request

to proceed in forma pauperis and DISMISS this appeal.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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