                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       October 30, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    PETE G A RY M O O ME Y ,

                Petitioner-A ppellant,

    v.                                                    No. 05-6299
                                                   (D.C. No. 04-CV -880-HE)
    M A RTY SIR MO N S, Warden; THE                      (W .D. Okla.)
    A TTO RN EY G EN ER AL O F THE
    STA TE OF O K LA H O MA ,

                Respondents-Appellees.



                               OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and H ARTZ, Circuit Judges.




         Pete G ary M oomey, convicted in state court of first-degree murder, appeals

the federal district court’s order denying his petition for habeas relief. 1 W e

*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
      W e deny Respondents-Appellees’ motion to dismiss this appeal on the
ground that M oomey failed to lodge specific objections to the federal magistrate
judge’s report and recommendation that habeas relief be denied. W hile
                                                                      (continued...)
granted a certificate of appealability to determine whether M oomey’s trial counsel

was ineffective for not pursuing certain evidence that another person had

comm itted the crime. W e conclude that (1) counsel acted within the realm of

acceptable trial strategy in deciding what witnesses to call; and (2) that

procedural bar precludes substantive review of counsel’s failure to obtain DNA

evidence. Therefore, we affirm.

                                    B ACKGROUND

      M oomey and Bill W alker were friends and business partners. D uring their

relationship, “[t]here had become an imbalance on the order of $160,000.” A plt.

App., Vol. 3, at 985. Specifically, M oomey “had overdrawn [his] share of [the]

net profits.” Id. at 992.

      On Thursday, M ay 21, 1998, W alker arrived at the Cove Club, an

Oklahoma City bar, expecting to meet M oomey “with some money.” Id., Vol. 1,

at 250. W hen M oomey arrived, he told W alker that “he had made a deposit at the

bank . . . [and] that it was late in the day and would not show up on the records

until tomorrow.” Id. at 251. The two had a drink, played pool, and then left

separately for the Enzone, another bar.




1
 (...continued)
M oomey’s objections w ere limited in specificity, they were specific enough to
focus the district court’s attention on the factual and legal issues in dispute. See
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060-61 (10th Cir. 1996).

                                          -2-
      Before reaching the Enzone, M oomey stopped at his flower shop, where his

friend, Steve Tabor, was waiting. Ordinarily, Tabor would drive M oomey around

town because M oomey had lost his driver’s license. But because M oomey

“need[ed] to take care of some business,” M oomey had Tabor follow him to the

Enzone. Id. at 170-71.

      M oomey and Tabor arrived at the Enzone sometime around 5:00 or 7:00

p.m., and began playing pool. W alker was there, along with another of the

group’s friends, Tommy Yost. At 10:00 p.m., M oomey told Tabor to wait at the

Enzone for about an hour, because he might call for a ride. M oomey then left in

W alker’s car.

      Around 10:38 p.m., M oomey called Tabor, stating that he w as “at Kerr

Village,” an apartment complex, and needed a ride. Id. at 173. Tabor traveled to

Kerr Village and found M oomey, who was carrying a “shoe box with a cloth” on

it. Id. at 175. According to Tabor, M oomey put the box in the back of Tabor’s

truck, got in, and wiped his hands and forearms with a piece of paper, which he

then threw out the window. M oomey also suggested that Tabor “may need to

vacuum out [the] truck, . . . [as] there may be blood and glass in it.” Id. at 177.

Tabor thought that M oomey appeared “stressed out.” Id. at 176. Tabor drove

M oomey to a parking lot adjacent to M oomey’s home, where M oomey said, “The

less you know , the better off you are. . . . [I’m] not a bad person, it’s just

business, and watch the TV . . . . [I]t has to do with $160,000.” Id. at 177.

                                           -3-
M oomey then exited the truck, retrieved the box and cloth, and walked off tow ard

his home. There, M oomey’s wife, Regina, saw her .38-caliber revolver in the

box.

       Around 11:00 or 11:30 p.m., Yost, who was still at the Enzone, received a

telephone call from M oomey, asking if Yost would come to M oomey’s home and

drive Regina to the Enzone so she could retrieve M oomey’s truck. Yost

complied.

       Several hours later, M oomey left home in his truck, with the box and some

clothes. M oomey picked-up his girlfriend and left town, intending to order plants

in Kingston, Oklahoma, and then take a trip “somewhere.” Id., Vol. 2, at 403.

       On Saturday, M ay 23, police found W alker’s car in Kerr Village parked

next to a dumpster. According to residents, it had been parked there since

Thursday night. W alker’s body was found lying in the front seat and there were

two gunshot wounds to his head. The window on the driver’s side door was

shattered. The evidence indicated that W alker had been shot at close range, “six

or so inches away,” id. at 523, with .38-caliber metal-point bullets fired from

either a .38-caliber or a .357-magnum revolver, id. at 558. Among other items

found in the car was a cigarette butt, the DNA profile for which matched neither

M oomey nor W alker.

       W hen Tabor learned of Walker’s murder, he contacted police. M oomey

was arrested in Galveston, Texas on Sunday, M ay 24. A search of M oomey’s

                                         -4-
home uncovered a box of .38-caliber ammunition that was consistent with a bullet

removed from W alker’s skull. M oomey was charged with first-degree murder and

robbery with a firearm.

      During trial, a dispute arose betw een M oomey and his defense counsel.

M oomey wanted his counsel “to call another witness . . . before I testify, another

person that’s been implicated in this crime.” Id., Vol. 5, at 1660. Defense

counsel explained to the court that there were three designated witnesses in this

area: Tommy M erritt, Patsy Thompson, and Donna Schatz. Thompson and

Schatz purportedly overheard M erritt tell an unidentified party on the telephone

that he (M erritt) had killed W alker. Defense counsel stated that he had

interview ed Thompson and concluded that she would not make “a credible

witness.” Id., Vol. 5, at 1662. He continued: “I have made the decision that

strategically in this trial to not muddy the water and put this on. I feel it will

backfire. And so, I do not intend to call Tommy M erritt, Patsy Thompson or

Donna . . . Schatz.” Id. Defense counsel indicated, however, that he had not

spoken to Schatz. The prosecutor revealed that M erritt was interviewed by police

and denied admitting to W alker’s murder. Thompson was also interviewed, and

she told police “that she was [M oomey’s] first love and that she would do

anything to get [M oomey] out of jail.” Id., Vol. 6, at 1666. Additionally,

Thompson was M oomey’s sister-in-law and M erritt’s ex-girlfriend, had once

smashed M erritt’s windshield, and failed to reveal M erritt’s alleged admission for

                                           -5-
four-and-a-half months. M oomey ultimately decided to follow defense counsel’s

advice and to proceed w ithout calling any of the three witnesses.

      M oomey took the stand and testified that around 10:00 p.m., W alker

offered to drive him home from the Enzone. And that while driving him home,

W alker took a diversion to Kerr Village to “pick up” a female prostitute. Id., Vol.

6, at 1742. Because W alker later decided to “hang around [Kerr Village]” and

“party,” M oomey called Tabor for a ride home. Id. at 1747-48. M oomey denied

warning Tabor about blood and glass possibly getting in his truck, denied

mentioning “$160,000,” and claimed that the box he was carrying contained a

bottle of alcohol and that much of his conversation with Tabor concerned Tabor’s

affair with Regina. Id. at 1759. M oomey also testified that he did not kill

W alker, did not owe him $160,000, and that someone must have planted the

amm unition in his home. During closing arguments, M oomey’s counsel

suggested that W alker may have been killed by the prostitute or her pimp, and

that Tabor and Regina implicated M oomey so they could be together.

      The jury found M oomey guilty of first-degree murder, but not guilty of

robbery. M oomey appealed to the O klahoma Court of Criminal Appeals (OCCA),

arguing, among other things, that his trial counsel was ineffective for “fail[ing] to

present to the jury that another man had admitted that he had killed W alker.” Id.,

Vol. 7, at 2049. The OCCA affirmed, stating that counsel’s conduct “w as w ithin

the wide range of reasonable professional conduct based on sound trial strategy.”

                                         -6-
Id. at 2224. M oomey then sought state post-conviction relief. He was

unsuccessful initially and on appeal.

      In his habeas petition to the federal district court, M oomey argued, among

other things, that trial counsel was ineffective for (1) “fail[ing] to investigate

material exculpatory information from” Schatz and Thompson indicating that

M erritt w as the killer, id. at 2071; and (2) not having the “DNA collected at the

[crime] scene” compared to M erritt’s DNA, id. at 2072. The court denied the

petition and M oomey appealed.

                                     D ISCUSSION

      We review the denial of federal habeas relief de novo, applying the same

standards used by the district court. Jackson v. Ray, 390 F.3d 1254, 1259

(10th Cir. 2004), cert. denied, 126 S. Ct. 61 (2005). Under the Anti-Terrorism and

Effective Death Penalty Act (AEDPA), a federal court may not grant habeas relief

on a claim adjudicated on the merits in state court, unless the state court decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2). M oomey does not

complain that the OCCA unreasonably determined the facts of his ineffective-

assistance claim; thus, our analysis proceeds under § 2254(d)(1).




                                          -7-
      The Sixth Amendment’s counsel clause is violated when counsel performs

deficiently and prejudices the defense. Strickland v. Washington, 466 U.S. 668,

687 (1984). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690. In particular, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Id. at 690-91.

                                I. Witness Testimony

      M oomey argues that his counsel’s decision to not call M erritt, Thompson,

and Schatz was deficient because he never interviewed Schatz. M oomey explains

that “Schatz was a potential credible witness [who] would have identified the real

killer and/or who would have been used to impeach M r. M erritt’s testimony or

assertion of the 5th Amendment.” Aplt. Br. at 42. Nevertheless, we cannot say

that the OCCA improperly applied Strickland in deeming counsel’s decision

acceptable trial strategy. M erritt had denied responsibility for the killing and

there was no independent evidence implicating him. Thompson had motive to lie

about M erritt’s involvement and had failed to promptly contact authorities. And

while testimony from Schatz might have drawn the jury’s attention away from

M oomey, it might also have alienated the jury, given the suspect nature of the


                                          -8-
accusation. Further, accusing M erritt would have conflicted, at least partially,

with M oomey’s theory that Walker had been killed by a prostitute or her pimp. 2

Consequently, counsel’s decision to avoid “muddy[ing] the water” by accusing

M erritt of Walker’s murder was strategically sound, notwithstanding the failure to

interview Schatz. Aplt. App., Vol. 5, at 1662.

                                  II. DNA Evidence

      M oomey also argues that his counsel was ineffective for not obtaining D N A

from M erritt and comparing it to the DNA on the cigarette butt found in W alker’s

car. This argument was not made to the OCCA on direct appeal. M oomey

apparently advanced this argument during the state post-conviction proceedings,

id., Vol. 7, at 2138, and the OCCA found that it was barred, as it could have been

brought on direct appeal, id. at 2065.

      W e do not consider issues on habeas review that have been defaulted in

state court on an independent and adequate state procedural ground, unless the

petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

justice. Smith v. M ullin, 379 F.3d 919, 926 (10th Cir. 2004). W e have construed

Oklahoma’s procedural bar as effective “to preclude habeas review of ineffective

assistance claims only when ‘trial and appellate counsel differ’ and the ‘claim can

be resolved upon the trial record alone.’” Id. at 927 (quoting English v. Cody,

146 F.3d 1257, 1264 (10th Cir. 1998)). M oomey had different counsel at trial and

2
      Nothing in the record indicates whether M erritt was or was not a pimp.

                                         -9-
on appeal. Further, after the state raised the procedural-bar defense in regard to

the DNA-evidence/ineffective-assistance issue, Aplt. App., Vol. 7, at 2138,

M oomey’s habeas counsel filed a reply completely omitting any mention of the

issue or the state’s defense, id. at 2183-92. See Hooks v. Ward, 184 F.3d 1206,

1217 (10th Cir. 1999) (“Once the state pleads the affirmative defense of an

independent and adequate state procedural bar, the burden to place that defense in

issue shifts to the petitioner.”). W e conclude that the state sufficiently raised the

procedural-bar defense and that M oomey conceded its applicability before the

federal district court. 3

       The judgment of the district court is AFFIRMED.

                                                      Entered for the Court


                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




3
       In resolving M oomey’s habeas petition, the federal district court found
“analysis of the [habeas] procedural issues more problematic than a review of the
merits of [M oomey’s] ineffective assistance of counsel claims.” Aplt. App., Vol.
7, at 2169. C onsequently, the court did not apply procedural bar or AEDPA-
deference, and instead, reviewed on the merits M oomey’s claim that trial counsel
was ineffective for not obtaining a DNA comparison. W hile we do not share the
district court’s view that the record is so vague as to warrant a merits review, w e
would agree with the district court that, on the merits, M oomey’s trial counsel
was not deficient for failing to obtain a DNA comparison.

                                          -10-
