                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    January 16, 2008
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court


DAVID ALTON GIBSON, JR.,

              Petitioner - Appellant,
                                                         No. 07-5023
       v.
                                                      (N.D. Oklahoma)
                                               (D.C. No. 03-CV-641-CVE-SAJ)
REGINALD HINES, Warden;
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,

              Respondents - Appellees.


                                        ORDER


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.


      Appellant, David Alton Gibson, seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Gibson has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      As a result of his involvement in a murder-for-hire, Gibson was charged

with one count of conspiracy to commit first degree murder, in violation of Okla.
Stat. tit. 21, § 421(C), and one count of solicitation to commit murder, in

violation of Okla. Stat. tit. 21, § 701-16. Prior to the trial of Gibson’s co-

conspirator, Stanley Williamson, a hearing was held pursuant to Harjo v. State,

797 P.2d 338, 343 (Okla. Crim. App. 1990). At the conclusion of the Harjo

hearing, the trial court ruled that statements made by Gibson to several witnesses

were admissible against Williamson. See Okla. Stat. tit. 12, § 2801(4)(b)(5)

(2002). Gibson and Williamson were tried separately. Although no separate

Harjo hearing was held for Gibson, during an in camera hearing Gibson’s

attorney stipulated to the admissibility of hearsay statements made by Williamson

and previously testified to by witnesses Hayes, Edward Marshall, Gibbs, and

Thomason. Based on that stipulation, the trial court ruled as follows:

      Well, I have previously determined, and so it wouldn’t be any
      surprise, that these [statements] were made during the course of a
      conspiracy that involved, among others, Mr. Gibson and Stan
      Williamson; that that conspiracy existed beginning in the fall,
      approximately October, and continued into the next year into
      January—some of these are outside of that time frame—and that they
      were made, as I say, during the course of and in the furtherance of
      the alleged conspiracy. So I’ll determine that those are admissible,
      as I previously have done.

      At the completion of the trial, Gibson was convicted of both counts. He

challenged his convictions by filing a direct appeal with the Oklahoma Court of

Criminal Appeals (“OCCA”), raising the following arguments: (1) the trial court

erroneously admitted hearsay statements made by co-conspirators, (2) his trial

counsel was constitutionally ineffective for failing to demand a Harjo hearing and

                                          -2-
failing to object to co-conspirator hearsay statements admitted during trial, and

(3) the evidence was insufficient to sustain his convictions. The OCCA

considered all three of Gibson’s arguments but affirmed his convictions. As to

his ineffective assistance claim, the court stated,

      As noted, the record shows that [Gibson’s] trial counsel was present
      at the Harjo hearing held before Williamson’s trial. Although
      [Gibson] and Williamson were tried separately, the evidence of a
      conspiracy was essentially the same, albeit the roles of defendant and
      co-conspirator were, of course, reversed. A second hearing to
      redetermine whether a conspiracy existed would have been
      superfluous; counsel’s decision to forego this exercise in futility was
      an informed and reasonable one. We find neither deficient
      performance nor actual prejudice resulting from Counsel’s decision.

      Gibson filed the instant § 2254 habeas petition on September 18, 2003. In

his petition, Gibson raised the ineffective assistance and sufficiency-of-the-

evidence claims previously adjudicated by the OCCA. In addition, he alleged (1)

his substantive due process rights were violated by the OCCA’s erroneous reading

of the trial court record and (2) his convictions and sentences violate the Fifth

Amendment’s Double Jeopardy Clause. The district court characterized Gibson’s

allegation that the OCCA misread the trial transcript as a challenge to the

presumption of correctness afforded the findings of the OCCA pursuant to 28

U.S.C. § 2254(e)(1). The court concluded Gibson rebutted that presumption with

clear and convincing evidence neither he nor his trial counsel attended

Williamson’s Harjo hearing. Accordingly, when the court addressed Gibson’s




                                          -3-
ineffective assistance claim it did so without reference to the challenged finding,

analyzing instead the independent basis for the OCCA’s ruling.

      Applying the standard set forth in the Antiterrorism and Effective Death

Penalty Act, the district court concluded the OCCA’s adjudication of Gibson’s

ineffective assistance and sufficiency-of-the evidence claims was not contrary to,

nor an unreasonable application of clearly established federal law. 28 U.S.C.

§ 2254(d). The court next concluded that Gibson’s double jeopardy claim was

procedurally defaulted in Oklahoma state court because he failed to raise it on

direct appeal. The court determined it was procedurally barred from considering

the claim because Gibson failed to show cause for the default and actual prejudice

or that the failure to review his claims would result in a fundamental miscarriage

of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      In his appellate brief, Gibson challenges the district court’s resolution of

his ineffective assistance and sufficiency-of-the-evidence claims, 1 argues the

district court erred by not considering additional allegations of ineffective

assistance of trial counsel, and further asserts the district court erred by not

conducting an evidentiary hearing before ruling on his habeas petition. To be

entitled to a COA, Gibson must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he

must demonstrate “that reasonable jurists could debate whether (or, for that

      1
          Gibson does not challenge the disposition of his double jeopardy claim.

                                          -4-
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);

see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a

district court dismisses a habeas petition on procedural grounds, a petitioner is

entitled to a COA only if he shows both that reasonable jurists would find it

debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Gibson has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El at 338. Although Gibson need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Gibson’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that Gibson

is not entitled to a COA. The district court’s resolution of Gibson’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Because Gibson’s claims were capable of being resolved on the

record, the district court did not abuse its discretion by failing to hold an

evidentiary hearing. See Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).

                                          -5-
Neither did the court err in concluding additional allegations of ineffective

assistance of counsel were not properly presented in the habeas petition. 2

Accordingly, Gibson has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Gibson’s request for a COA and dismisses this appeal.


                                               ENTERED FOR THE COURT




                                               Elisabeth A. Shumaker, Clerk




      2
       In any event, there is no indication from the record that these claims were
presented to the OCCA on direct appeal.

                                         -6-
