                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 25, 2009

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 BILLY DALE LATHROP,

              Petitioner-Appellant,
                                                       No. 09-6021
 v.                                             (D.C. No. 5:07-CV-01396-C)
                                                       (W.D. Okla.)
 WALTER DINWIDDIE, Warden,

              Respondent-Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Billy Dale Lathrop, an Oklahoma state prisoner proceeding pro se, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas petition and request for

a certificate of appealability (“COA”). For substantially the same reasons set

forth by the magistrate judge and adopted by the district court, we deny a COA

and dismiss the appeal.

                                         I

      In 2003, Lathrop was tried jointly with his co-defendant, Amy Flippence, in

Oklahoma state court on charges of conspiracy to manufacture a controlled

substance, possession of a controlled dangerous substance, possession of a
precursor substance, possession of drug paraphernalia, and child endangerment.

He was convicted by a jury on all charges and sentenced to a 96-year term of

imprisonment.

      On direct appeal, represented by different counsel, Lathrop raised four

challenges to his conviction: unconstitutional admission of hearsay statements

made by Flippence, ineffective assistance of trial counsel, unconstitutional denial

of a motion to sever his trial from that of Flippence, and cumulative error. The

Oklahoma Court of Criminal Appeals (“OCCA”) concluded that Lathrop’s right to

confrontation was violated but ruled the error harmless. It rejected the remainder

of petitioner’s challenges. Because the Oklahoma statute under which petitioner

was convicted did not apply to his conduct at the time he was charged, the OCCA

sua sponte reversed the three child endangerment convictions.

      In 2006, Lathrop sought post-conviction relief in Oklahoma state court. He

argued that appellate counsel was ineffective for failing to raise the failure of his

trial counsel to properly investigate his case or to raise a sufficiency of the

evidence claim. The state district court denied relief. Lathrop’s appeal to the

OCCA was affirmed on the conclusion that he failed to show prejudice.

      Ten days later, Lathrop filed a federal petition for habeas corpus relief

under 28 U.S.C. § 2254 in the United States District Court for the Western

District of Oklahoma. In his habeas petition, Lathrop raised each of the claims he

raised on direct appeal and in his application for state post-conviction relief with

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the sole exception of the cumulative error claim. The magistrate judge issued a

report and recommendation denying the petition because the Oklahoma courts’

decisions survived the deferential standard of review under the Antiterrorism and

Effective Death Penalty Act. Over Lathrop’s objection, the district court adopted

the magistrate’s recommendation and denied COA. Lathrop appeals.

                                          II

      Because the district court denied Lathrop’s habeas petition and his request

for a COA, he may not proceed further absent a grant of a COA by this court. 28

U.S.C. § 2253(c)(1)(A). To obtain a COA, Lathrop must make a “substantial

showing of the denial of a constitutional right.” § 2253(c)(2). This requires him

to show “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.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

      Lathrop seeks a COA on the same claims he made before the federal district

court: (1) admission of Flippence’s statements violated his right to confrontation;

(2) trial counsel was ineffective; (3) unconstitutional trial court denial of a

severance motion; and (4) ineffective assistance of appellate counsel. He also

claims cumulative error. Because each of these grounds was decided on the

merits in Oklahoma state court, petitioner is entitled to federal habeas relief only

if the state court decisions were “contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or “based on an unreasonable determination of the

facts in light of the evidence presented.” § 2254(d)(1)-(2). A federal court “may

not issue the writ simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.”

Williams v. Taylor, 529 U.S. 362, 411 (2000). We turn to the claimed error.

      First, Lathrop argues that allowing a witness to testify regarding the

Flippence hearsay statements violated the right to cross-examination under the

Confrontation Clause of the Sixth Amendment as interpreted in Bruton v. United

States, 391 U.S. 123 (1968). On Lathrop’s direct appeal, the OCCA agreed, but it

held that the error was harmless beyond a reasonable doubt. We agree with the

district court that the OCCA was not unreasonable in concluding that Flippence’s

statements were cumulative and thus harmless. Accordingly, reasonable jurists

would agree that Lathrop is not entitled to habeas relief on this ground.

      Second, Lathrop alleges that his trial counsel was ineffective because he

failed to object to the Bruton violation, failed to give a proper opening statement,

failed to properly prepare for trial, failed to object on a number of occasions,

failed to engage in meaningful cross examination, and failed to give a meaningful

closing argument. Applying Lockett v. State, the OCCA denied the claim. See

53 P.3d 418, 424 (Okla. Crim. App. 2002) (“To prevail on a claim of ineffective

                                         -4-
assistance of counsel, Appellant must overcome the strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance by showing: [1] that trial counsel’s performance was deficient; and [2]

that he was prejudiced by the deficient performance.” (citing Strickland, 466 U.S.

668, 687 (1984)) (quotation omitted; brackets original)). Because it applied the

Strickland standard, the OCCA decision was not contrary to clearly established

federal law. Moreover, for the reasons given by the magistrate judge and adopted

by the district court, reasonable jurists would agree that the OCCA reasonably

applied that standard in determining that trial counsel was not ineffective.

      Third, Lathrop argues that the trial court erred in denying his motion to

sever his trial from that of Flippence. His argument raises but an error of state

law, which cannot support federal habeas relief. See § 2254(a) (“[A] district

court shall entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State court only on the ground

that he is in custody in violation of the Constitution or laws or treaties of the

United States.” (emphasis added)). As the district court recognized, “[w]hether

the trial court erred in denying severance is generally a question of state law that

is not cognizable on federal habeas appeal, for a criminal defendant has no

constitutional right to severance unless there is a strong showing of prejudice

caused by the joint trial.” Cummings v. Evans, 161 F.3d 610, 619 (10th Cir.

1998) (citation omitted). With the exception of the admission of the Flippence

                                          -5-
statements previously addressed, the Lathrop and Flippence defenses did not

conflict.

      Fourth, Lathrop alleges that appellate counsel was ineffective for failing to

challenge the sufficiency of the evidence as to his conspiracy conviction. “When

considering a claim of ineffective assistance of appellate counsel for failure to

raise an issue, we look to the merits of the omitted issue.” Neill v. Gibson, 278

F.3d 1044, 1057 (10th Cir. 2001) (quotation and footnote omitted). Even were we

to assume that it was unreasonable for appellate counsel not to raise a sufficiency

claim, Lathrop must show that “there is a reasonable probability that, but for his

counsel’s unreasonable failure to raise these claims, [he] would have prevailed on

his appeal.” Id. (quotation omitted). Applying this standard, the OCCA

concluded that because Flippence—Lathrop’s sole coconspirator—unsuccessfully

raised a sufficiency challenge to the same charge, it was not likely that Lathrop

would have succeeded on a similar challenge. Reasonable jurists would agree

that this is a proper application of federal law.

      Lathrop’s final claim is one of cumulative error, not raised before the

federal district court. Ordinarily, we do not consider issues unless they were

raised below. United States v. Jarvis, 499 F.3d 1196, 1201-02 (10th Cir. 2007).

We perceive no reason to deviate from that practice.




                                          -6-
                                  III

      We DENY a COA, DISMISS the appeal, and DENY the motion to proceed

in forma pauperis on appeal.



                                 ENTERED FOR THE COURT



                                 Carlos F. Lucero
                                 Circuit Judge




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