FILED
United States Court of Appeals
Tenth Circuit
February 16, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DEJUAN JERROD HUNTER,
Petitioner-Appellant,
v. Nos. 09-5122, 09-5141
(D.C. No. 4:06-cv-00230-CVE-TLW)
ERIC FRANKLIN, Warden,
(N. D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, SEYMOUR and EBEL, Circuit Judges.
Petitioner-Appellant DeJuan Jerrod Hunter seeks a certificate of appealability
(“COA”), see 28 U.S.C. § 2253(c), that will permit him to appeal the district court’s
decision denying him federal habeas relief, see 28 U.S.C. § 2254, from his Oklahoma
conviction for shooting with the intent to kill.1 In his § 2254 petition, Hunter raised four
*
This order is not binding precedent except under the doctrines of law of the case, res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
The district court granted Hunter’s motion to proceed on appeal in forma pauperis. See
28 U.S.C. § 1915. Hunter’s appeal No. 09-5122 is taken from the district court’s decision
denying him habeas relief, while his appeal No. 09-5141 is from the district court’s later
grounds for relief: 1) the trial court denied him a fair trial by permitting testimony about
Hunter’s other crimes that were not probative of his guilt on the offense charged; 2) the
trial court erred in refusing to instruct jurors, during the sentencing phase of trial, that
Hunter would be required to serve 85% of his sentence before becoming eligible for
parole; 3) Hunter’s trial counsel was ineffective for failing to request that the trial court
instruct the jury regarding Hunter’s parole eligibility; and 4) his attorney was ineffective
for failing to argue, on direct appeal, that a) Hunter was innocent; b) the State failed to
prove all the elements of the charged offense beyond a reasonable doubt; c) cumulative
errors by trial counsel required a new trial; d) prosecutorial misconduct required reversal
of his conviction; and e) there was no ballistics or fingerprint evidence presented at trial
linking Hunter to the weapon police found after the shooting. Before this court now,
however, Hunter seeks a COA on only the first three grounds for relief.2
To be entitled to a COA, Hunter must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). He can do so by “showing that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
decision denying Hunter a COA to appeal the denial of habeas relief.
2
After the district court denied Hunter § 2254 relief, he asserted several new claims in
his application for COA made to the district court, arguing that his trial attorney was
ineffective for failing to object to the admission of the gun into evidence, investigate the
gun to determine if it could be linked forensically to Hunter, make the State prove all the
elements of the offense beyond a reasonable doubt, and object during the trial to the
State’s presentation of the testimony of Mr. and Mrs. Ray, following the trial court’s
denial of a defense motion in limine seeking to exclude their testimony. Hunter reiterates
those claims now in his COA application filed with this court. We decline to grant COA
on those grounds, however, because Hunter did not properly present them to the district
court in his § 2254 petition.
2
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation omitted). For substantially the reasons stated in the district court’s
decision denying Hunter habeas relief, we conclude that he has failed to make a
substantial showing of the denial of a constitutional right. Therefore, we DENY Hunter’s
applications for a COA and DISMISS these appeals.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
3