                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 December 9, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 CHRISTOPHER LEYJA,

       Petitioner-Appellant,                      Nos. 10-6121 and 10-6140
       v.                                              (W.D. of Okla.)
 DAVID PARKER, Warden,                          (D.C. No. 5:09-CV-00265-W)

       Respondent-Appellee.


                                      ORDER


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      This matter is before the court on appellant’s Request for En Banc Hearing.

The request for panel rehearing is granted in part. The court’s opinion is

amended to add pages 5 through 7. The amended order shall issue nunc pro tunc

to the original filing date November 2, 2010. A copy of the amended decision is

attached to this order. The request for panel rehearing is otherwise denied.

      The petition with en banc request was also transmitted to all of the judges

of the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, the
en banc request is denied.



                                 Entered for the Court,




                                 ELISABETH A. SHUMAKER
                                 Clerk of Court




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                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 2, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 CHRISTOPHER LEYJA,

                 Petitioner-Appellant,            Nos. 10-6121 and 10-6140
          v.                                            (W.D. of Okla.)
 DAVID PARKER, Warden,                           (D.C. No.5:09-CV-00265-W)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **



      Petitioner Christopher Leyja, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) , we deny his request for a COA,

deny his request to proceed on appeal in forma pauperis, 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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Following a jury trial in Oklahoma state court, Leyja was convicted of

three charges involving his former girlfriend, Donna Thompson: first-degree rape

(Count I), first-degree burglary (Count II), and forcible oral sodomy (Count III).

He was sentenced to forty years on Count I, twenty years on Count II, and twenty

years on Count III, each to be served consecutively. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed Leyja’s conviction on direct appeal. Leyja’s

pursuit of state post-conviction relief was also unsuccessful.

      Leyja subsequently filed a habeas petition in federal district court. The

district court referred the matter to a magistrate judge for initial proceedings

consistent with 28 U.S.C. § 636(b)(1)(B) and (C). In a carefully reasoned and

thorough report and recommendation, the magistrate judge recommended Leyja’s

petition be denied. The district court adopted the magistrate judge’s

recommendation and denied the petition. The court then denied Leyja’s

application for a COA, stating,

      Because the Court has rejected Leyja’s claims on their merits . . . the
      Court finds that to be entitled to a COA Leyja ‘must demonstrate that
      reasonable jurists would find th[is] . . . [C]ourt’s assessment of the
      constitutional claims debatable or wrong.’ Upon review of the
      record, the Court finds that Leyja would be unable to make the
      requisite showing . . . .

May 20, 2010 Order at 1 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

The district court also denied Leyja leave to appeal in forma pauperis because


                                          2
“upon review of the record [] Leyja would not be able to present a reasoned,

nonfrivolous argument on the law and facts in support of the issues to be raised

on appeal. Leyja’s appeal therefore is not taken in good faith.” June 2, 2010

Order at 1. Leyja sought a second COA to appeal the district court’s denial of his

application to proceed in forma pauperis, which the district court also denied.

          Leyja now seeks a COA from this court to enable him to appeal the denial

of his habeas petition and his application to proceed in forma pauperis. He raises

the following issues: (1) insufficient evidence of guilt, (2) actual innocence, (3)

ineffective assistance of trial counsel, (4) ineffective assistance of appellate

counsel, (5) the erroneous admission of expert testimony, (6) the erroneous

admission of a portion of a medical report in violation of Leyja’s Sixth

Amendment right to confrontation, (7) an alleged Brady violation by prosecutors

in misrepresenting that a witness could not be located, and (8) an alleged Brady

violation by prosecutors in failing to disclose a study on which expert testimony

was based.

          We interpret Leyja’s request for a COA regarding the district court’s denial

of his application to proceed in forma pauperis as a renewed application for this

status.

                                     II. Discussion

          Without a COA, we lack jurisdiction to consider the merits of a habeas

appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if “the applicant

                                            3
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make the requisite showing, Leyja must demonstrate 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.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).

      Because the OCCA addressed the merits of several of Leyja’s claims,

“AEDPA’s deferential treatment of state court decisions must be incorporated into

our consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935,

938 (10th Cir. 2004). Under AEDPA, we may grant a habeas petition on a claim

that was adjudicated on the merits in state court only if 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).

      Leyja is a pro se litigant and we construe his pleadings and other papers

generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

      Having thoroughly reviewed the record, we conclude Leyja is not entitled

to a COA on any of the issues that he seeks to pursue on appeal. As a threshold

matter, three of Leyja’s claims were not raised with the district court and are

waived. As a general rule, we will not consider issues on appeal that were not

                                           4
raised before the district court as part of the habeas petition. See Rhine v. Boone,

182 F.3d 1153, 1154 (10th Cir. 1999); see also Lyons v. Jefferson Bank & Trust,

994 F.2d 716, 721–22 (10th Cir. 1993). However, even if Leyja had properly

preserved these issues for appeal, they would have failed on the merits.

      First, Leyja claims the admission at trial of a diagram from a medical report

violated his Sixth Amendment right to confrontation, as the author of the report

was not available for cross-examination. Because the OCCA addressed this

question on direct appeal, habeas is only appropriate if the OCCA’s conclusions

were “contrary to, or involved an unreasonable application of clearly established

Federal law.” 28 U.S.C. § 2254(d)(1). To determine whether the law was clearly

established, we look to Supreme Court precedent as it existed when the state court

reached its decision. Valdez v. Ward, 219 F.3d 1222, 1229 (10th Cir. 2000).

      In Melendez-Diaz v. Massachusetts, the Supreme Court held a laboratory

drug analysis prepared for trial was testimonial evidence. 129 S. Ct. 2527,

2532–33 (2009) (citing Crawford v. Washington, 541 U.S. 36 (2004)). The

defendant’s right to confrontation was therefore violated when the trial court

admitted the analysis without providing the defendant with the opportunity to

cross-examine the analyst. Leyja argues this case clarifies the admission of the

medical diagram violated his Sixth Amendment right to confrontation. He is

arguably correct. However, this decision was not issued until 2009; the OCCA

resolved Leyja’s claim on direct appeal in 2007. In 2007, the question of whether

                                          5
such scientific analyses constitute testimonial evidence under Crawford was still

unsettled. In fact, several courts had held analogous documents did not implicate

the Sixth Amendment, reading dictum in Crawford to suggest business records are

not testimonial. Com. v. Verde, 444 Mass. 279, 283 (Mass. 2005) (holding drug

analyses were not testimonial under Crawford), abrogated by Melendez-Diaz 129

S. Ct. 2527; Perkins v. State, 897 So. 2d 457, 464 (Ala. Crim. App. 2004)

(finding an autopsy report not to be testimonial, as it had been made in the

ordinary course of business); People v. Johnson, 121 Cal. App. 4th 1409, 1412

(Cal. Ct. App. 2004) (finding a laboratory report was not testimonial under

Crawford).

      Because the Supreme Court had not resolved the question of whether a

scientific report is testimonial when the OCCA issued its decision, and because

multiple courts had found such reports are not testimonial, the OCCA’s

conclusion was not contrary to or an unreasonable application of clearly

established federal law.

      In his second claim, Leyja argues the prosecutors committed a Brady

violation in failing to disclose the 1966 study on which an expert witness relied.

In Brady v. Maryland, the Supreme Court held the state’s suppression of

“evidence favorable to an accused . . . violates due process where the evidence is

material either to guilt or to punishment.” 373 U.S. 83, 87 (1963). Thus, to

establish a Brady violation, Leyja must show: “1) that the prosecution suppressed

                                          6
evidence; 2) that the evidence was favorable to the accused; and 3) that the

evidence was material.” Smith v. Sec'y of N.M. Dep’t of Corr., 50 F.3d 801, 824

(10th Cir. 1995). Generally, evidence is material if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. United States v. Young, 45 F.3d 1405,

1408 (10th Cir.1995).

      Leyja claims the opportunity to review the contents and history of the 1966

study might have allowed his attorney to impeach the expert on cross-

examination. “Impeachment evidence as well as exculpatory evidence falls

within the Brady rule.” Id. However, Leyja has not shown the study could have

been used to impeach the expert. The only information he offers on this point is

that the study was published in 1966, and not 1956 as the expert testified. It is

unlikely such a minor error would have undermined the expert’s credibility with

the jury. Because Leyja does not show this study could have furthered his

defense, his claim of a Brady violation must fail. See Sandoval v. Ulibarri, 548

F.3d 902, 915 (10th Cir. 2008) (rejecting a Brady claim where appellant’s

argument that a medical report would have been exculpatory was merely

speculative).

      Leyja also asserts a second Brady violation in the prosecutors’

representation to the trial court, echoed by Leyja’s attorney, that a witness could

not be located. Even if Leyja is correct that the prosecutors deliberately

                                          7
suppressed evidence of the witness’s whereabouts, this act does not constitute a

Brady violation. An affidavit from this witness shows he could have testified that

Leyja and Thompson emerged from her building together, that Leyja was not

holding a weapon, and that Thompson unlocked her car door for Leyja. This is

consistent with Thompson’s own testimony at trial. Because the witness’s

testimony would not have contradicted Thompson’s or added significant

additional information, there is not a reasonable probability the testimony would

have altered the result of the trial.

       As to Leyja’s remaining claims, we agree with the findings of the

magistrate judge that were subsequently adopted by the district court. For

substantially the reasons stated in the report and recommendation, we affirm the

district court’s decision.

       Leyja argues his conviction for first-degree rape was based on insufficient

evidence of guilt. In support, Leyja cites the “911” tape in which Thompson

stated that she agreed to have sexual intercourse. Leyja also points to a letter

written by Leyja’s trial counsel asserting Thompson did not want to prosecute

because she had consented. However, Thompson’s complete statement on the

tape was that Leyja “terrorized me at knife point and hammer and said he was

gonna kill me . . . and so I had sex with him so that he wouldn’t kill me.” R. 911

Tape, Trial Exhibit 56. At trial, Thompson also testified she had intercourse with

Leyja only because he threatened her with force and she feared for her life. We

                                          8
agree with the magistrate judge that a rational trier of fact could have found Leyja

forced Thompson to have sexual intercourse using a threat of violence. This

claim therefore fails.

      Leyja also seeks a COA on the ground that he is actually innocent of the

crimes for which he was convicted. But a claim of actual innocence does not

support federal habeas relief, absent an independent constitutional violation

occurring in the underlying criminal proceeding. Herrera v. Collins, 506 U.S.

390, 400 (1993) (“This rule is grounded in the principle that federal habeas courts

sit to ensure that individuals are not imprisoned in violation of the

Constitution—not to correct errors of fact.”). And as noted above, a rational jury

could have concluded that Leyja committed the crime.

      Next, Leyja contends his trial counsel was ineffective for failure to call two

additional fact witnesses. Under Strickland v. Washington, counsel provides

ineffective assistance when the representation does not meet “an objective

standard of reasonableness,” and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” 466 U.S. 668, 688, 694 (1984). The OCCA found that failure to call

the first witness did not prejudice the outcome of the trial. We agree with the

magistrate judge this conclusion was not contrary to or an unreasonable

application of federal law. We also find that trial counsel’s decision not to call

the second witness was reasonable, given the possibility that his medical history

                                          9
would undermine his credibility and that similar evidence could be presented

through other witnesses. We therefore deny a COA on this claim.

         In his petition, Leyja also alleges his appellate counsel was ineffective, but

does not explain the basis for his claim. We assume he intends to raise the same

claim he made below, that his appellate attorney filed a defective appeal brief

depriving the OCCA of jurisdiction over the appeal, and that his appellate

attorney should have made additional arguments for ineffective assistance of trial

counsel. We agree with the magistrate judge’s finding Leyja’s appellate brief was

not defective and that, in any case, Leyja suffered no prejudice from any such

error as the OCCA reached the merits of his claims. We also agree Leyja’s

claims of ineffective trial assistance are without merit, and therefore appellate

counsel did not err in failing to raise these claims.

         Finally, Leyja contends the trial court erred in admitting the testimony of

the prosecution’s expert. The OCCA affirmed the expert was qualified to testify

on human sexual response under the test established by Daubert v. Merrell Dow

Pharms., 509 U.S. 579 (1993). Noting the qualification of an expert is a factual

issue for purposes of federal habeas review, the magistrate judge held this was not

an unreasonable determination in light of the facts presented at trial. Given the

expert’s testimony as to her training and experience in sexual assault nursing, we

agree.




                                            10
                                  III. Conclusion

      We GRANT Leyja’s motion to consolidate both applications for COA. For

the reasons stated above, we DENY Leyja’s request for a COA and DISMISS the

matter. We also DENY his request for leave to proceed on appeal in forma

pauperis.

                                           Entered for the Court,


                                           Timothy M. Tymkovich
                                           Circuit Judge




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