                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 22, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    JO H N BA X TER HA M ILTO N ,

                Petitioner-A ppellant,

    v.                                                   No. 06-6212
                                                    (D.C. No. 04-CV-1392)
    RANDALL G. W ORKM AN, W arden,                       (W .D. Okla.)

                Respondent-Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.


         Pursuant to 28 U.S.C. § 2253(c), petitioner-appellant John Baxter

Hamilton, an Oklahoma state prisoner appearing with counsel, is seeking a

certificate of appealability (COA) to appeal the order entered by the district court

denying his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. To

obtain a COA, petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, petitioner


*
       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 This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
“must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” M iller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quotation omitted). W e conclude that

petitioner has failed to make the showing necessary to obtain a COA. W e

therefore deny his application for a COA and dismiss this appeal.

      In D ecember 2001, petitioner w as convicted by a jury in the District Court

of Oklahoma County of first degree murder in connection with the death of his

wife, Susan Hamilton, and he was sentenced to life in prison without the

possibility of parole. Petitioner filed a direct appeal in the Oklahoma Court of

Criminal Appeals (O CCA), and the OCCA affirmed his conviction. Petitioner did

not seek post-conviction relief in state court.

      The evidence that was presented at petitioner’s trial is thoroughly

summarized in the magistrate judge’s lengthy report and recommendation. See

Aplt. App., Tab 4 at 59-62, 64-66. W e will assume a working familiarity with the

detailed background facts set forth in the magistrate judge’s report and

recommendation, and we will not repeat those facts here.

      At petitioner’s trial, Tom Bevel, a former police officer with the Oklahoma

City Police Department and a nationally recognized expert in the areas of

bloodstain pattern analysis and crime scene reconstruction, testified as an expert

witness on behalf of petitioner. In his testimony, M r. Bevel addressed the

opinions that had been presented in the prosecution’s case-in-chief by its

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bloodstain expert, Ross Gardner, and he also testified about “a couple of areas”

that M r. Gardner had “missed.” Id., Tab 19 at 2455. The magistrate judge

summarized the pertinent expert witness testimony in this case as follow s:

      The State presented an expert on bloodstain-pattern analysis,
      attempting to reconstruct the events surrounding Susan Hamilton’s
      death. From the bloodstains on Petitioner’s left shoe, Ross Gardner
      opined that Petitioner was likely present during the spatter event, i.e.
      when Susan Hamilton was killed. He opined that the stains were not
      likely the result of an attempt at cardiopulmonary resuscitation.
      Petitioner’s expert on blood spatter evidence offered other possible
      explanations for the allegedly incriminating blood stains. On
      cross-examination, however, Petitioner’s expert, Tom Bevel, opined
      that certain of the stains, those on Petitioner’s shirt sleeve, were most
      consistent with Petitioner’s involvem ent in the murder.

Id., Tab 4 at 62 (footnote omitted); see also id. at 66 (summarizing M r. Bevel’s

trial testimony, and noting that he testified on re-cross “that although other

scenarios w ere possible, in his opinion none of the scenarios proffered were more

probable than Petitioner striking his wife”).

      In his application for a COA, 1 petitioner asserts that “[t]he issues in this

case concern a breakdown in the adversary process created by the testimony of

‘defense’ expert Tom Bevel, and his opinion the blood on the inside of John

Hamilton’s shirt sleeve was most likely the result of John Hamilton striking his

wife in the head with a blunt instrument.” COA App. at 2. Specifically, as set




1
      On September 12, 2006, petitioner filed an application for a COA in this
court. Previously, in June 2006, the district court entered an order denying the
separate application for a COA that petitioner filed in that court.

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forth in his supporting brief, petitioner is asserting two claims as part of his

application for a COA. First, petitioner argues that he received ineffective

assistance from his trial counsel as a result of counsel’s decision to have

M r. Bevel testify as an expert witness. According to petitioner, “[d]efense

counsel’s decision to utilize Bevel in light of his relationship with the State

and the devastating opinions he offered at trial was objectively unreasonable.”

Aplt. Br. at 19. Second, petitioner argues that he received ineffective assistance

from his trial counsel due to counsel’s failure to put forth exculpatory expert

witness testimony to counter the state’s forensic case and its bloodstain expert.

Petitioner claims that “compelling expert witness testimony was available which

would have undermined the State’s forensic case,” and he argues that his trial

counsel’s “[f]ailure to discover and present this evidence and blind reliance on

Bevel’s objectivity denied [him] effective assistance of counsel.” Id.

      Petitioner asserted both of his ineffective assistance claims in the district

court proceedings. 2 Applying the standards set forth in 28 U.S.C. § 2254(e)(2),

the magistrate judge granted petitioner’s request for an evidentiary hearing with



2
       Petitioner also asserted two additional claims below. First, petitioner
claimed that he received ineffective assistance from his trial counsel because
M r. Bevel participated in improper comm unications with members of the
prosecution team and/or the Oklahoma City Police Department. Second,
petitioner claimed that the OCCA upheld his conviction by fashioning a rule that
penalized him for testifying in his own defense. Petitioner has abandoned both of
these claims in this appeal, however, see COA App. at 3 nn.1-2, and we therefore
do not need to consider them.

                                          -4-
respect to his ineffective assistance claims, and a one-day evidentiary hearing was

held before the magistrate judge. Among other witnesses, petitioner’s trial

counsel testified at the hearing. Although M r. Bevel did not testify at the hearing,

his sworn deposition testimony in a related civil case was submitted to the court.

Following the hearing, the magistrate judge filed a thirty-three page report and

recommendation, recommending to the district court that petitioner’s habeas

petition be denied. In accordance with the magistrate judge’s recommendation,

the district court subsequently entered an order denying petitioner’s request for

habeas relief on both of his ineffective assistance claims. W e review the district

court’s rulings de novo. See United States v. Orange, 447 F.3d 792, 796

(10th Cir. 2006) (“A claim for ineffective assistance of counsel presents a mixed

question of fact and law, which w e review de novo.”).

      As correctly noted by the magistrate judge, the federal courts have a

“‘secondary and limited’ role in reviewing state court rulings through a petition

for a writ of habeas corpus.” Aplt. App., Tab 4 at 62 (quoting Castro v. Ward,

138 F.3d 810, 815 (10th Cir. 1998)). As the magistrate judge explained:

      For factual and legal issues that have already been adjudicated in
      state court, the Court may only grant a writ of habeas corpus if that
      adjudication (1) resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly established federal
      law, as determined by the Supreme Court, or (2) resulted in a
      decision that was based on an unreasonable determination of the
      facts in light of evidence presented in the State court proceeding.
      28 U.S.C. § 2254(d)(1) and (2).



                                         -5-
             A state court’s determination is contrary to clearly established
      federal law where it applies a rule that contradicts the law set forth in
      Supreme Court cases, or confronts a set of facts that are materially
      indistinguishable from a decision of the Supreme Court and
      nevertheless arrives at a different result. W illiams v. Taylor,
      529 U.S. 362, 405-06 (2000). A state court’s determination involves
      an unreasonable application of clearly established Supreme Court
      precedent if it identifies the correct governing legal principle from
      the Court’s decisions, but unreasonably applies that principle to the
      facts of the prisoner’s case. Id. at 413; see also W iggins v. Smith,
      539 U.S. 510, 520 (2003). It is not enough that the state court
      applied clearly established federal law erroneously or incorrectly;
      the application must also be unreasonable. W illiams, 529 U.S. at
      410-11; Brown v. Payton, [544 U.S. 133, 141] (2005) (erroneous or
      incorrect application of Supreme Court precedent by the state court
      must be objectively unreasonable).

Id. at 62-63.

      In its decision in petitioner’s direct appeal, the OCCA addressed the merits

of both of petitioner’s ineffective assistance claims. See Aplt. App., Tab 2 at 25,

28-31. The OCCA also identified the correct governing legal principles for

analyzing claims for ineffective assistance of counsel under the Sixth Amendment

(as applied to the states through the Fourteenth Amendment), as the court applied

the principles set forth by the Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984). Id. at 29. In addition, petitioner is not arguing that the

OCCA erred because it was faced with a set of facts that were materially

indistinguishable from a decision of the Supreme Court, but nevertheless arrived

at a different result. Accordingly, the only question we must resolve is whether




                                         -6-
the district court correctly determined that the OCCA did not unreasonably apply

the principles set forth in Strickland.

      “In order to establish a successful claim for ineffective assistance of

counsel, [petitioner] must show (1) that counsel’s performance was deficient, and

(2) that this deficient performance prejudiced his defense, depriving him of a fair

trial with a reliable result.” Orange, 447 F.3d at 796 (citing Strickland, 466 U.S.

at 687). “Because [petitioner] must demonstrate both Strickland prongs to

establish his claim, a failure to prove either one is dispositive.” Id. at 796-97

(citation omitted). Here, the O CCA found that petitioner’s trial counsel’s

performance was not deficient. See Aplt. App., Tab 2 at 31 n.44. Consequently,

the OCCA did “not reach Strickland’s prejudice inquiry.” Id.

      To establish that his trial counsel’s performance was deficient, petitioner

must show “that counsel’s performance fell below an objective standard of

reasonableness.” Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir. 2006)

(quotation omitted). In deciding w hether this show ing has been made, we “must

judge the reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.

at 690 (emphasis added); accord Richie v. M ullin, 417 F.3d 1117, 1120 (10th Cir.

2005) (“[D]ecisions alleged to be deficient must not be viewed in a vacuum; the

court must assess such actions from the vantage point of counsel at the time of

their making and with all relevant facts in mind.”). M oreover, “[r]eview of

                                          -7-
counsel’s performance under the first prong of the Strickland test is highly

deferential.” Barkell, 468 F.3d at 689. As a result,

         [C]ounsel is strongly presumed to have rendered adequate assistance
         and made all significant decisions in the exercise of reasonable
         professional judgment. To be deficient, the performance must be
         outside the wide range of professionally competent assistance.
         Counsel’s decisions are presumed to represent sound trial strategy;
         [f]or counsel’s performance to be constitutionally ineffective, it must
         have been completely unreasonable, not merely wrong.

Id. (quotations and citations omitted).

         W e agree with the district court’s conclusion that the OCCA did not

unreasonably apply the principles set forth in Strickland when it denied relief on

petitioner’s claims for ineffective assistance of counsel. Thus, with regard to

petitioner’s claim that he received ineffective assistance from his trial counsel as

a result of counsel’s decision to have M r. Bevel testify, we deny petitioner’s

request for a COA for substantially the same reasons set forth in the magistrate

judge’s well-reasoned report and recommendation. See Aplt. App., Tab 4

at 73-82. Specifically, we agree with the following analysis of the magistrate

judge:

         As set forth above, at the time of Petitioner’s trial, [his trial] counsel
         believed that M r. Bevel would not opine that “the most likely” cause
         of the blood spatter on Petitioner’s sleeve was his involvement in his
         wife’s murder, if that information was “stumbled” on by the
         prosecution during cross-examination. Counsel believed that
         M r. Bevel would opine that the stain was consistent with either
         Petitioner’s involvement or innocent interaction, without saying
         which was more probable. A ccordingly, when counsel elected to call
         M r. Bevel as a witness they had no knowledge that his testimony

                                             -8-
      would be inconsistent with Petitioner’s defense, despite having
      conducted adequate inquiry. . . . The undersigned cannot conclude
      that utilizing a witness after asking the pertinent questions,
      conducting the necessary investigation, and receiving answers
      consistent with the theory of defense fell below an objective standard
      of reasonableness. . . . Because counsel’s actions were not
      objectively unreasonable, Petitioner has failed to establish that the
      application of Strickland by the Oklahoma Court of Criminal Appeals
      was unreasonable. . . .

             To the extent the petition can be construed as arguing that any
      ineffective performance by M r. Bevel should be imputed to trial
      counsel, the claim must fail as well. The Constitution does not
      entitle a criminal defendant to the effective assistance of an expert
      witness. . . . The United States Supreme Court has never recognized
      a right to the effective assistance of expert witnesses distinct from
      the right to effective counsel.

Id. at 78-80 (footnotes and citations omitted).

      W ith regard to petitioner’s claim that he received ineffective assistance

from his trial counsel because counsel failed to procure a more favorable

bloodstain expert, we likewise deny petitioner’s request for a COA for

substantially the same reasons set forth in the magistrate judge’s report and

recommendation. Id. at 82-85. In particular, we agree with the following

analysis of the magistrate judge and the OCCA:

      Petitioner asserts that trial counsel’s performance was deficient
      because counsel failed to retain a different blood spatter expert
      whose opinions would have contradicted those offered by the State’s
      expert and M r. Bevel. In support of his request for an evidentiary
      hearing before the Oklahoma Court of Criminal Appeals, Petitioner
      included the affidavit of an expert he contends should have been
      called, John T. W ilson. . . .




                                         -9-
            In rejecting this claim on direct appeal the Oklahoma Court of
      Criminal Appeals again applied Strickland. Opinion, p. 24, n.44.

             Finally, in his supplementary materials, Appellant
             presents the affidavit of another bloodstain expert who
             concludes that, from his review of the evidence, it is
             impossible to determine whether or not Appellant was
             present when his wife was killed. Appellant contends
             that trial counsel was ineffective for not marshaling this
             evidence before trial to rebut Gardner’s conclusions.
             The fact that Appellant was able to find a more
             favorable expert opinion after trial does not mean trial
             counsel was ineffective for having consulted with a
             different expert before trial. . . . As noted above,
             Appellant concedes that counsel’s initial choice of Bevel
             was sound. W hen counsel undertakes reasonable
             investigation using qualified experts, we will not gauge
             his performance by the outcome of the expert’s
             conclusions or testimony. Appellant’s trial counsel was
             not ineffective.

      Opinion, p. 24 (footnotes omitted). Nothing in the Oklahoma Court
      of Criminal Appeals’ decision is contrary to Strickland nor was it an
      unreasonable application thereof.

Id. at 83 (citations omitted).

      Petitioner’s application for a COA is D ENIED and this matter is

D ISM ISSED .


                                               Entered for the Court
                                               ELISABETH A. SHUM AKER, Clerk


                                               By:
                                                     Deputy Clerk




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