Barnett v. Bear , 632 F. App'x 519 ( 2016 )


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  •                                                                     FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    TENTH CIRCUIT                          January 26, 2016
    Elisabeth A. Shumaker
    Clerk of Court
    ERIC JOSE BARNETT,
    Petitioner - Appellant,                            No. 15-7065
    (D.C. No. 6:12-CV-00204-JHP-KEW)
    v.                                                            (E.D. Okla.)
    CARL BEAR, Warden,
    Respondent - Appellee.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
    Petitioner Eric Barnett, an Oklahoma state prisoner proceeding pro se,1 seeks a
    certificate of appealability (“COA”) to challenge the district court’s denial of his 28
    U.S.C. § 2254 petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)
    (requiring a COA to appeal denial of a § 2254 application). Exercising jurisdiction under
    * This order is not binding precedent, except under the doctrines of law of the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
    Although we liberally construe a pro se litigant’s filings, see Erickson v. Pardus,
    
    551 U.S. 89
    , 94 (2007), we may not “assume the role of advocate,” Yang v. Archuleta,
    
    525 F.3d 925
    , 927 n.1 (10th Cir. 2008) (quotations omitted); see also United States v.
    Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009), and we do not “fashion . . . arguments for
    him,” United States v. Fisher, 
    38 F.3d 1144
    , 1147 (10th Cir. 1994).
    28 U.S.C. § 1291, we deny a COA and dismiss this matter.
    I. BACKGROUND
    Mr. Barnett is serving a 23-year sentence for second-degree felony murder. The
    Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction and sentence on
    direct appeal and denied Mr. Barnett’s application for an evidentiary hearing on his
    ineffective assistance of counsel claim. Mr. Barnett petitioned for rehearing. The OCCA
    granted the petition and denied relief.
    Mr. Barnett then filed a § 2254 petition in federal district court, raising seven
    grounds for relief. On September 25, 2015, the district court denied the petition and
    declined to issue a COA. Mr. Barnett now seeks a COA from this court to appeal three
    issues he raised in district court: (1) prosecutorial misconduct, (2) ineffective assistance
    of counsel, and (3) the trial court’s failure to instruct the jury on self-defense or the
    lesser-included offense of first-degree manslaughter.
    II. DISCUSSION
    A. Standard of Review and Legal Background
    A COA is necessary to appeal from a district court’s denial of a § 2254 habeas
    petition. See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003). To obtain a COA, Mr.
    Barnett must make “a substantial showing of the denial of a constitutional right.” 28
    U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 
    529 U.S. 473
    , 483-84 (2000). He may
    do so by “showing that reasonable jurists could debate whether . . . the [motion] should
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    have been resolved in a different manner or that the issues presented were adequate to
    deserve encouragement to proceed further.” 
    Slack, 529 U.S. at 484
    (quotations omitted).
    When, as here, a state court has decided the petitioner’s claim on the merits, we
    make this COA determination by “look[ing] to the District Court’s application of
    AEDPA to petitioner’s constitutional claims and ask[ing] whether that resolution was
    debatable among jurists of reason.” 
    Miller-El, 537 U.S. at 336
    . AEDPA provides that
    federal courts cannot grant habeas relief unless 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,” 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).
    B. Analysis
    The district court thoroughly examined Mr. Barnett’s grounds for relief and
    prepared a well-reasoned order denying his petition and COA request. In his brief to this
    court, Mr. Barnett cites the state-court briefing and record and makes cursory arguments
    that do not challenge the specific reasoning of the district court.
    Although we construe Mr. Barnett’s pro se filing liberally, we cannot serve as his
    advocate. 
    Pinson, 584 F.3d at 975
    . It is insufficient for a COA applicant to incorporate
    previous filings by reference rather than explaining the specific basis for the appeal. See
    Wardell v. Duncan, 
    470 F.3d 954
    , 963–64 (10th Cir. 2006) (holding that a pro se
    appellant could not incorporate pleadings into his appellate brief rather than explaining
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    his arguments and that his “pro se status does not except him from such established
    rules”). Local Rule 28.4, which applies equally to pro se litigants, expressly prohibits
    “[i]ncorporating by reference portions of lower court . . . briefs.” 10th Cir. R. 28.4; see
    also Garrett v. Selby Connor Maddux & Janer, 
    425 F.3d 836
    , 841 (10th Cir. 2005)
    (stating Federal Rule of Appellate Procedure 28 applies equally to pro se litigants).
    Mr. Barnett has not explained why the district court’s resolution of his claims was
    faulty and has therefore failed to carry his burden. In addition, we conclude based on our
    independent review of the record, and for substantially the same reasons given in the
    district court’s order, that no reasonable jurist could debate the correctness of the court’s
    ruling.
    III. CONCLUSION
    For the foregoing reasons, we deny Mr. Barnett’s application for a COA and
    dismiss this matter.
    ENTERED FOR THE COURT,
    Scott M. Matheson, Jr.
    Circuit Judge
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