                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                December 18, 2008
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court



    STEVEN RAY WILLIAMS,

                Petitioner-Appellant,
                                                          No. 08-6009
    v.                                             (D.C. No. 5:07-CV-00503-R)
                                                          (W.D. Okla.)
    MIKE ADDISON, Warden,
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


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


         Steven Ray Williams was convicted in Oklahoma state court for making a

lewd and indecent proposal to a child under sixteen years of age. Following an

unsuccessful direct appeal, he filed a 28 U.S.C. § 2254 habeas petition in the

federal district court. The petition was denied.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Williams now appeals. We issued a certificate of appealability to consider

whether Williams’ trial counsel was ineffective for not pursuing a defense that the

victim was sixteen years old at the time of the proposal. We affirm.

                                  B ACKGROUND

      In 2004, Williams was charged with three counts of lewd molestation of

S.J., his step-daughter; one count of making a lewd and indecent proposal in 2000

to K.J., his friend’s daughter; and one count of indecent exposure toward K.J. in

2002. Williams was acquitted on the molestation and exposure counts. But he

was convicted, as mentioned above, on the lewd-and-indecent-proposal count.

That count was premised on Williams asking K.J., in a lewd and lascivious

manner, “Wouldn’t it feel so good to have sex with me[?]” R., Vol. 2 at 130.

      At trial, K.J. testified that Williams began commenting on her appearance

in the summer of 2000, when she was fifteen-and-a-half years old. He would say

that she was “really pretty” and had big “boobs.” Id., Vol. 5 at 834, 835.

Williams’ behavior soon escalated. When K.J. was inside Williams’ house one

day doing “billing . . . for [his] hardware store,” he “grabbed [her] arm” and

kissed her. Id. at 836. On a subsequent occasion, again when K.J. was in the

home doing billing work, Williams forced her onto a bed, attempted to rub and

kiss her, and asked, “Wouldn’t it feel good to have sex with me?” Id. at 838.

K.J. began “screaming and kicking,” and when Williams “finally let [her] go,” she

ran home. Id. She kept the incident to herself for some time, however, because

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she “didn’t think anyone would really listen to [her] and [she] didn’t want to put

[the] families through all of this.” Id. at 844-45.

      On cross-examination, Williams’ counsel attempted to undermine K.J.’s

accusations by, among other things, suggesting that if she had screamed, she

would have been heard by Williams’ son, whom she was dating. Specifically,

defense counsel noted that K.J. had provided a written statement to Sheriff’s

Investigator Brian Layton, in which she claimed that around the time of incident,

Williams’ son “was in the garage working on his truck.” Id. at 863 (quotation

marks omitted). Defense counsel then elicited from K.J. that Williams’ son did

not come inside after she screamed. Id. at 864.

      Williams’ defense, identified initially during opening remarks, was that he

was merely asking K.J. whether it would “be better to wait until [she was] older

to have sex?” Id., Vol. 2 at 158. Williams later testified in support of that

defense, explaining that he had a “father-daughter relationship” with K.J., and

that he was attempting to discourage her from “having sex at such a young age”

when she was seeing his son. Id., Vol. 7 at 1356.

      The jury found Williams guilty, and he was sentenced to ten years’

imprisonment. On appeal to the Oklahoma Court of Criminal Appeals (OCCA),

Williams argued, among other things, that his trial counsel provided ineffective

assistance because he failed to pursue a defense that K.J. was over sixteen years

old when Williams made the proposal. The ineffectiveness was premised on the

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fact that the garage was not built until after K.J. had turned sixteen in October

2000. Consequently, Williams could not have been guilty of making a lewd

proposal to a child under sixteen if Williams’ son was, as K.J. asserted, in the

garage when the proposal occurred.

      Williams moved for an evidentiary hearing and to supplement the appellate

record. He submitted documents concerning the garage’s construction and

affidavits indicating that, during trial counsel’s cross-examination of K.J.,

Williams alerted his counsel to the discrepancy about the garage. Specifically, in

his affidavit, Williams claimed:

      I told my trial attorney . . . , “That’s not right. I don’t even know if
      the garage was there. I don’t think [my son] was in the garage
      because there was no garage at that time.” After I told [my attorney]
      those statements, he just shrugged his shoulders, made a motion with
      his hands to silence and told me, “[W]e’re not going there.”

Id., Vol. 9 at 1900.

      The OCCA affirmed Williams’ conviction, denying his motion and

rejecting his ineffective-counsel argument:

      [Williams] claims this evidence [of the garage’s construction date]
      would have shown it was factually impossible for him to have
      propositioned [K.J.] during the time frame she testified to. Yet at
      trial, [Williams] admitted having a conversation of a sexual nature
      with [K.J.] during that time frame; he simply recalled the exact
      wording of his statements a bit differently. Trial counsel’s strategic




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      decisions are entitled to considerable deference, and [Williams]
      has not raised a strong possibility that counsel’s decision here
      undermines confidence in the outcome of the trial.

Id. at 1940.

      Williams next petitioned the federal district court for habeas relief, which

the district court denied.

                                    D ISCUSSION

                              I. Standards of Review

      Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a

writ of habeas corpus will not be granted unless the state court’s adjudication of

the claim (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

United States Supreme Court; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence in the state court

proceeding. 28 U.S.C. § 2254(d)(1)-(2). Williams bases his request for habeas

relief on the first AEDPA prong, arguing that “[t]he OCCA’s decision was

contrary to and involved an unreasonable application of” Strickland v.

Washington, 466 U.S. 668 (1984). Aplt. Br. at 21.

                        II. Ineffective Assistance of Counsel

      Strickland mandates a two-pronged standard for claims of ineffective

assistance of counsel. There must be both deficient performance by counsel and

prejudice resulting from counsel’s deficient performance. See Strickland,

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466 U.S. at 687. To show prejudice, the defendant must establish “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

      Williams argues that the OCCA resolved his ineffective-assistance

argument using a standard contrary to Strickland. The OCCA defined

Strickland’s “reasonable probability” of a different result as requiring a “strong

possibility that counsel’s [performance] . . . undermines confidence in the

outcome of the trial,” R., Vol. 9 at 1940 (emphasis added), rather than a

“probability sufficient to undermine confidence in the outcome,” Strickland,

466 U.S. at 694 (emphasis added). We need not decide whether “strong

possibility” is the quantum of probability the Supreme Court had in mind when it

expressed prejudice in terms of undermining confidence in the trial’s outcome.

The OCCA’s determination that Williams failed to establish deficient

performance dooms his ineffective-assistance claim. 1

      In reviewing trial counsel’s performance, we “must be highly deferential”

and we “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action

1
      “This court can affirm the denial of habeas relief on whichever Strickland
prong is the easier to resolve.” Romano v. Gibson, 239 F.3d 1156, 1181
(10th Cir. 2001).

                                          -6-
might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotation

omitted). Our deference is substantial under AEDPA because the OCCA applied

this principle. See Parker v. Scott, 394 F.3d 1302, 1320 (10th Cir. 2005).

Accordingly, we may grant habeas relief only if the OCCA “unreasonably

applie[d] that principle to the facts of [Williams’] case.” See Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quotation omitted). In other words, the OCCA’s

decision “must have been more than incorrect or erroneous[,] . . . [it] must have

been objectively unreasonable.” Id. at 520-21 (quotation omitted).

      Trial strategy involves whether to raise a particular defense. Anderson v.

Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005). Williams argues that

the defense concerning the garage’s construction date should have been raised at

the start of trial, 2 or at the latest, during K.J.’s cross-examination. A defense

involving the garage’s construction date, however, could have signaled to the jury

that Williams was not contesting that he propositioned K.J. for sex, and that he

instead was simply claiming it was not illegal. If the jury developed such a view

of the defense, it might have been more inclined to find Williams guilty on the

molestation and exposure counts. Further, success with the garage defense would

have been questionable, because the jury could simply have viewed K.J.’s


2
        Williams contends that if defense counsel had shown him K.J.’s written
statement concerning the garage, he could have pursued “a meaningful defense
. . . that the garage did not exist until after [K.J.’s] 16 th birthday.” Opening Aplt.
Br. at 29.

                                          -7-
recollection of the garage’s existence as a minor error of memory, given that the

incident with Williams occurred several years before she mentioned the garage to

Investigator Layton. And if the defense had been raised during K.J.’s cross-

examination, there would have been the additional negative consequence of

contradicting the earlier-announced defense strategy, which was that Williams

was simply counseling K.J. about sexual activity, rather than propositioning her.

      Given the risks inherent in the garage defense, the OCCA did not

unreasonably resolve Williams’ Strickland claim.

                                   C ONCLUSION

      The judgment of the district court is AFFIRMED.

                                                   Entered for the Court


                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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