FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 15, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BYRON GAY,
Petitioner - Appellant,
v. No. 18-1435
(D.C. No. 1:18-CV-00188-RBJ)
SCOTT DAFFENBACH, Warden, (D. Colo.)
Fremont Correctional Facility; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Mr. Byron Gay was convicted in Colorado district court. After
unsuccessfully appealing and collaterally challenging the conviction in
state court, Mr. Gay sought habeas relief in federal district court. That
court denied relief, and Mr. Gay wants to appeal. To do so, he requests a
certificate of appealability and leave to proceed in forma pauperis.
*
Our order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order may be cited for its persuasive value if otherwise appropriate. See
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Certificate of Appealability
We deny the request for a certificate of appealability.
1. Mr. Gay is convicted based on a DNA match.
The conviction grew out of a burglary in Colorado. The homeowners
and two guests returned home, and the burglar fled through a bedroom
window. The police quickly arrived to investigate, and the guests described
the burglar as a white male. The police later tested the DNA samples from
an imprint on a kitchen window and matched the DNA to Mr. Gay, who is
African-American. The trial court convicted Mr. Gay of second-degree
burglary, theft, and criminal mischief.
2. Mr. Gay is not entitled to a certificate of appealability on the
claims involving actual innocence, insufficiency of the evidence,
and unreliability of the evidence.
In part, Mr. Gay sought habeas relief based on actual innocence,
insufficiency of the evidence, and unreliability of the evidence. The
district court rejected these claims on the merits, and Mr. Gay wants to
appeal these rulings. To do so, he needs a certificate of appealability. See
28 U.S.C. § 2253(c) (requiring a certificate of appealability for an appeal).
We can issue the certificate on these claims only if reasonable jurists
would regard the district court’s rulings as debatable or wrong on the
merits. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Gay cannot
satisfy this standard.
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In our circuit, “actual innocence does not constitute a freestanding
basis for habeas relief.” Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th
Cir. 2019). Thus, no reasonable jurist would regard the district court’s
ruling on Mr. Gay’s claim of actual innocence as debatable or wrong.
Nor could reasonable jurists debate Mr. Gay’s claim involving
insufficiency of the evidence. For this claim, the underlying test is whether
a rational fact-finder could have found the essential elements of guilt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying this test, we
view the evidence in the light most favorable to the prosecution. Id. And
viewing the DNA evidence favorably to the prosecution, a fact-finder could
reasonably have found guilt.
Mr. Gay contends that some of the DNA evidence should have been
excluded. But when the petitioner challenges the sufficiency of the
evidence, we consider all of the evidence even if some of it should have
been excluded. McDaniel v. Brown, 558 U.S. 120, 130-31 (2010) (per
curiam). Thus, Mr. Gay’s contention does not render the ruling debatable
or wrong.
Mr. Gay also disputes the way that the state appellate court
considered the DNA evidence. That court concluded that the defense had
essentially conceded the existence of a DNA match by admitting that
Mr. Gay’s partial DNA profile had been found on the kitchen window.
Mr. Gay argues that the state appellate court should not have relied on
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defense counsel’s concession. To prevail on habeas relief, however,
Mr. Gay must show that the state appellate court’s rationale was contrary
to or an unreasonable application of clearly established federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). And Mr. Gay
has not identified any Supreme Court case law restricting state courts from
deeming defense counsel’s concessions as binding on the client. So no
reasonable jurist would regard this ruling as contrary to, or an
unreasonable application of, Supreme Court precedent. We thus deny a
certificate of appealability on this claim.
3. Mr. Gay is not entitled to a certificate of appealability on his
procedurally barred habeas claim involving ineffective assistance
of counsel.
In district court, Mr. Gay also claimed that his trial counsel had been
ineffective in failing to hire a DNA expert. The district court deemed this
claim procedurally barred. To obtain a certificate of appealability on this
issue, Mr. Gay must show that the district court’s procedural ruling was at
least reasonably debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mr. Gay cannot clear this hurdle.
He brought this claim when appealing the denial of his collateral
challenge in state court. The state appellate court declined to consider the
claim, reasoning that Mr. Gay had to present the claim in state district
court. Given this procedural defect, the federal district court deemed the
claim procedurally barred unless Mr. Gay could show cause and prejudice.
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Mr. Gay argued that cause and prejudice existed based on a lack of counsel
in state district court. The federal district court rejected this argument, and
we conclude that this ruling is not reasonably debatable.
Mr. Gay has not presented any evidence that a DNA expert would
have provided favorable testimony. Given the absence of such evidence, we
conclude that Mr. Gay failed to present a reasonably debatable theory of
prejudice. 1 In the absence of prejudice, the claim of ineffective assistance
is clearly procedurally barred. We thus deny a certificate of appealability
on this claim. See Boyle v. McKune, 544 F.3d 1132, 1138 (10th Cir. 2008)
(holding that the petitioner had not shown prejudice from counsel’s failure
to call expert witnesses when the petitioner had not identified helpful
testimony that the witnesses would have provided).
* * *
Given the absence of a reasonably debatable ruling in district court,
we decline to issue a certificate of appealability. The lack of a certificate
requires us to dismiss the appeal.
Leave to Proceed In Forma Pauperis
Though we dismiss the appeal, we must address Mr. Gay’s motions
for leave to proceed in forma pauperis. See Clark v. Oklahoma, 468 F.3d
1
Given the absence of prejudice, we need not decide whether Mr. Gay
has shown cause.
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711, 715 (10th Cir. 2006) (stating that a petitioner remains obligated to
pay the filing fee after denial of a certificate of appealability). To obtain
leave to proceed in forma pauperis, Mr. Gay must show that he
• lacks the money to prepay the filing fee and
• brings the appeal in good faith.
28 U.S.C. § 1915(a)(1), (a)(3).
He satisfies both requirements, for he has no assets and we have no
reason to question Mr. Gay’s good faith even though the rulings are not
reasonably debatable. See Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir.
1997) (per curiam) (stating that the petitioner’s burden for a certificate of
appealability “is considerably higher” than the burden of “good faith” for
leave to proceed in forma pauperis). As a result, we grant leave to proceed
in forma pauperis. See Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir.
2008) (granting leave to proceed in forma pauperis notwithstanding the
denial of a certificate of appealability); Yang v. Archuleta, 525 F.3d 925,
931 & n.10 (10th Cir. 2008) (same).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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