                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                         October 7, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 ZONTA V. WEST,

           Petitioner - Appellant,

 v.                                                          No. 14-6107
                                                      (D.C. No. 5:13-CV-0017-M)
 JIM FARRIS, Warden,                                         (W.D. Okla.)

           Respondent - Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



       Zonta Vincent West seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and

dismiss the 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         This order is not binding precedent except under the doctrines of law of the case,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.
                                             I

       On November 7, 2008, while delivering pizza, Jeremy Moore was shot dead

outside of an apartment complex in Oklahoma City. Police investigators discovered that

the pizza was ordered from a telephone at West’s home in a nearby apartment complex.

       Under videotaped questioning, West claimed that an acquaintance, Rondell

Griffin, used his phone to order the pizza, intending to rob the delivery person. West

revealed substantial knowledge of the crime that only a participant was likely to know.

He denied taking part in the robbery, maintaining instead that he told Griffin and

Christian Holder, a co-conspirator who arrived later, that their robbery plan was “crazy.”

West proffered an alibi that he was with his girlfriend, Ashley Tucker, in her apartment

during the time of the murder but made conflicting statements about when he went to

Tucker’s apartment. In a later interview, Tucker told the police that West came and went

from her apartment at times different from West’s account.

       According to Griffin, he and West jointly hatched the robbery scheme. After

Griffin called for the pizza, they informed Holder of their plan. Holder agreed to

participate and retrieved brass knuckles to use in the robbery. Holder testified that the

trio then went to the apartment complex where Moore’s body was found. Both Holder

and Griffin claimed that, once there, they ran into a man named Larry Stelly, who asked

them about their plans and told them he had a gun. Holder testified that West obtained

Stelly’s gun and shot Moore after he arrived to deliver the pizza.


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       Aside from a receipt for the pizza found in Moore’s pocket, the only physical

evidence the police discovered was a pizza warming bag in Griffin’s shed. The gun was

never located.

       A jury convicted West of first degree felony murder. He was sentenced to life

with the possibility of parole. The Oklahoma Court of Criminal Appeals (“OCCA”)

denied his direct appeal. The district court denied his petition for habeas corpus. West

now seeks a COA to appeal that denial.

                                              II

       West may not appeal the denial of § 2254 relief without a COA. § 2253(c)(1).

We will issue a COA “only if the applicant has made a substantial showing of the denial

of a constitutional right.” § 2253(c)(2). To satisfy this standard, West 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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotations omitted).

       Construing West’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991), he alleges that his constitutional rights were denied in four ways:

(1) he received ineffective assistance of counsel; (2) he was denied due process and the

right to confront his accuser; (3) the evidence against him was insufficient to support his

conviction; and (4) the jury was not instructed regarding lesser included offenses.


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                                             A

       A petitioner claiming ineffective assistance of counsel must establish “that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a

“defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

In reviewing a state court’s application of Strickland, we must be doubly deferential,

inquiring “whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011).

       West first argues that his trial counsel were ineffective because they failed to call

Tucker, his alibi witness. An affidavit submitted in West’s direct appeal explains that

although Tucker arrived in court pursuant to her subpoena, district attorney staff

informed her that she could go home. Tucker was told that she did not need to worry

about the defense’s subpoena, because only the prosecution could “lock her up.” West’s

attorneys searched the courthouse for Tucker and sent an investigator to her home, but

ultimately decided to proceed without calling her because the jury had already heard

West’s alibi in a videotaped statement. The OCCA concluded that counsel’s decision did

not constitute ineffective representation, but was instead a strategic decision on the part




                                            -4-
of defense counsel. We agree with the district court that the OCCA’s decision was

neither contrary to, nor an unreasonable application of, Supreme Court precedent.

       Separately, West argues that his counsel were ineffective because they failed to

request an alibi instruction. The OCCA rejected this claim in part because the jury was

instructed on exculpatory statements. West’s attorney understood the exculpatory

statement instruction as including West’s alibi. We thus agree with the district court that

the OCCA’s determination was reasonable.

       Finally, West contends that his lawyers were ineffective because their ignorance of

evidentiary rules opened the door to harmful evidence. West argues that his lawyers

structured their trial strategy so as to prevent three witnesses from testifying. Those

witnesses averred that Holder told them that West shot Moore. West’s lawyers

nevertheless cross-examined Holder about his motivation to fabricate testimony against

West to obtain a reduced sentence, incorrectly believing that this would not open the door

to Holder’s prior consistent statements made to the three witnesses. The OCCA

concluded that West was not prejudiced by this error because his attorneys were allowed

to recall Holder and impeach him with inconsistencies in his testimony that they had

previously avoided, making his statements to the three witnesses seem less credible.

Despite West’s attorneys’ deficient performance, we agree with the district court that the

OCCA’s conclusion is neither contrary to, nor an unreasonable application of, Strickland.




                                            -5-
                                             B

       West contends that improper hearsay testimony violated both the Confrontation

Clause and his due process rights. Specifically, Holder stated twice that Stelly, who did

not testify at West’s trial, asked him “why Zonta shot him.” Neither statement was

elicited by the prosecution, and the judge admonished the jury to ignore the statements.

Accordingly, the OCCA found that the errors were “harmless beyond a reasonable

doubt.”

       “When reviewing state court determinations that a constitutional error was

harmless, we ask whether the error had a substantial and injurious effect on the jury's

decision.” Banks v. Workman, 692 F.3d 1133, 1139 (10th Cir. 2012) (quotations

omitted). “A substantial and injurious effect exists when the court finds itself in grave

doubt about the effect of the error on the jury’s verdict.” Welch v. Workman, 639 F.3d

980, 992 (10th Cir. 2012) (quotations omitted).

       We have no grave doubt about the effect of Holder’s improper testimony on the

jury’s verdict.

                                             C

       West argues that there is insufficient evidence to corroborate the testimony from

his accomplices implicating him as Moore’s murderer. “When reviewing the sufficiency

of the evidence on a habeas corpus petition, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of


                                            -6-
fact could have found the essential elements of the crime beyond a reasonable doubt.”

Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations omitted).

       Undeniably, there is no physical evidence linking West to the crime scene. And

there is scant circumstantial evidence to corroborate testimony that he participated in the

robbery, let alone that he pulled the trigger. But there is some corroborating evidence—

the phone call was made from West’s home, he admitted allowing Griffin to use his

phone, and West knew many details of the crime. Viewing the facts in the light most

favorable to the prosecution, a rational trier of fact could have found this evidence

sufficient to corroborate the accomplices’ testimony.

                                               D

       Lastly, West argues that the trial court failed to instruct the jury as to lesser

included offenses. Oklahoma trial courts “are required to instruct on all lesser included

or lesser related offenses warranted by the evidence.” Childress v. State, 1 P.3d 1006,

1011 (Okla. Ct. Crim. App. 2000). However, because West did not raise this issue before

the district court, it is forfeited. See United States v. Jarvis, 499 F.3d 1196, 1201 (10th

Cir. 2007) (“Failure to raise an argument before the district court generally results in

forfeiture on appeal.”).




                                             -7-
                                      III

For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                       Entered for the Court



                                       Carlos F. Lucero
                                       Circuit Judge




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