Barnett v. Bear, 10th Cir. (2016)
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United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
January 26, 2016
Elisabeth A. Shumaker
Clerk of Court
ERIC JOSE BARNETT,
Petitioner - Appellant,
v.
No. 15-7065
(D.C. No. 6:12-CV-00204-JHP-KEW)
(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 courts 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* This order is not binding precedent, except under the doctrines of law of the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.
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Although we liberally construe a pro se litigants 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. Barnetts 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 courts 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 courts 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 petitioners claim on the merits, we
make this COA determination by look[ing] to the District Courts application of
AEDPA to petitioners 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 courts 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. Barnetts 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. Barnetts 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, 96364 (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 courts 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 courts order, that no reasonable jurist could debate the correctness of the courts
ruling.
III. CONCLUSION
For the foregoing reasons, we deny Mr. Barnetts application for a COA and
dismiss this matter.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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