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

                                    TENTH CIRCUIT                            August 25, 2011

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 FREDERICK LEE DURBIN,

          Petitioner - Appellant,

 v.                                                           No. 11-7028
                                                  (D.C. No. 6:07-CV-00262-JHP-KEW)
 GREG PROVINCE, Warden,                                        (E.D. Okla.)

          Respondent - Appellee.


              ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       Petitioner Frederick Lee Durbin, an Oklahoma state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his

habeas corpus petition filed pursuant to 28 U.S.C. § 2254. 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). We deny the COA request and dismiss this

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       *This order is not binding precedent, except under the doctrines of law of the case,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. BACKGROUND

       An Oklahoma state court jury convicted Mr. Durbin in 2004 of three counts of

lewd molestation of his 12-year-old son and three counts of lewd molestation of his 11-

year-old nephew. Because Mr. Durbin had been previously convicted in 1992 of two

separate felonies for lewd molestation, he was sentenced under Okla. Stat. tit. 21,

§ 1123(A) to life in prison without parole. The Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed the judgment and sentence. Mr. Durbin filed for post-conviction

relief, which the OCCA dismissed. He filed the instant § 2254 habeas petition on August

24, 2007. In the petition, Mr. Durbin claimed improper admission of child hearsay

testimony under Okla. Stat. tit. 12 § 2803.1, and ineffective assistance of appellate

counsel.

       Mr. Durbin’s § 2254 petition was referred to a magistrate judge, who prepared a

comprehensive Report and Recommendation (“R & R”). Durbin v. Province, No. Civ.

07-262-JHP-KEW, 2010 WL 6268375 (E.D. Okla. Sept. 2, 2010). The magistrate judge

recommended that Mr. Durbin’s child hearsay claim should be denied because it

concerned a matter of state law and because any erroneous admissions of evidence was

not so fundamentally unfair as to violate due process. Id. at *3–4 (citing Williamson v.

Ward, 110 F.3d 1508, 1522–23 (10th Cir. 1997) (“When the admission of evidence in a

state trial is challenged on federal habeas, the question is whether the error, if any, was so

grossly prejudicial that it fatally infected the trial and denied the fundamental fairness

that is the essence of due process.”)). The magistrate judge also recommended that Mr.
                                             -2-
Durbin’s claims of ineffective assistance of counsel should be denied. Id. at *15. The

district court adopted the Report and Recommendation and denied Mr. Durbin’s § 2254

petition. Durbin v. Province, No. CIV 07-262-JHP-KEW, 2011 WL 1060730, at *1

(E.D. Okla. March 23, 2011).

                                     II. DISCUSSION

       To receive a COA, Mr. Durbin “must make a substantial showing of the denial of

a constitutional right . . . [which] includes showing 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, 483–84 (2000) (quotations omitted).

In evaluating whether Mr. Durbin has carried his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework” applicable to

each of his claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Mr. Durbin is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of mere

good faith.” Id. (quotations omitted).

       Mr. Durbin’s brief is not a model of clarity, but we have done our best to

understand his contentions by reviewing his appellate brief, his brief to the district court,

the magistrate judge’s recommendations, and the record in this case.

       A. Child Hearsay Testimony

       Mr. Durbin alleges that he was denied a fair trial because the trial court admitted
                                             -3-
hearsay statements from prosecution witnesses without first conducting a hearing as

required by Okla. Stat. tit. 12 § 2803.1 to determine that such testimony was reliable.1

Specifically, Mr. Durbin objects to the trial court’s failure to: (1) conduct a hearing

before Calvin Steudeman testified; and (2) explain its decision to admit the testimony of

Wyndel Goodin after holding a hearing before he testified.

       Because this is an issue of state evidentiary law, we review only to ensure that the

state court’s rulings did not violate the Constitution, laws, or treaties of the United States.

Estelle v. McGuire, 502 U.S. 62, 68 (1991). It is not the responsibility of a federal

habeas court to cure errors from the state court concerning state law. Id. at 67–68. We

will only consider state law evidentiary questions on habeas “if the alleged error was so

grossly prejudicial that it fatally infected the trial and denied the fundamental fairness

that is the essence of due process.” Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir.

2002) (quotations omitted), cert. denied 537 U.S. 1021 (2002).

       Mr. Stuedeman testified that one of the victims told him that the victim had spent

the night at Mr. Durbin’s home and did not want to talk about what happened there. The

prosecution offered this statement not to prove its truth—that the victim did not want to

talk about what had happened at Mr. Durbin’s home—but rather to show that the victim

was hesitant to reveal what had actually happened on the night of the crimes. Although

       1
         Among other requirements, section 2803.1 requires that the court find “in a
hearing outside the presence of the jury, that the time, content and totality of
circumstances surrounding the taking of the statement provide sufficient indicia of
reliability so as to render it inherently trustworthy.”

                                              -4-
we agree with the magistrate judge and the OCCA that this statement was not hearsay,

Durbin, 2010 WL 6268375 at *3, thereby rendering a section 2803.1 hearing

unnecessary, even if it were hearsay, we also agree with the magistrate judge that the trial

court’s admission of this testimony did not render Mr. Durbin’s trial fundamentally

unfair.

          Mr. Durbin also claims that, although the trial court conducted an in camera

hearing before Mr. Goodin testified, the trial court did not properly explain why his

hearsay statements were reliable. We agree with the magistrate judge that because Mr.

Goodin’s hearsay statements largely corroborated the testimony of the victim, the trial

court’s failure to explain the basis for reliability did not render Mr. Durbin’s trial

fundamentally unfair.

          B. Ineffective Assistance of Appellate Counsel

          Mr. Durbin’s claims regarding ineffective assistance of counsel are directed at his

appellate lawyer. A criminal defendant is entitled to effective assistance of counsel on

direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396–97 (1985). To establish a claim of

ineffective assistance, a petitioner must show both (1) constitutionally deficient

performance, by demonstrating that his counsel’s conduct was objectively unreasonable,

and (2) resulting prejudice, by demonstrating a reasonable probability that, but for

counsel’s unprofessional errors, the result of the case would be different. See Strickland

v. Washington, 466 U.S. 668, 687 (1984). Appellate counsel need not raise every

nonfrivolous issue on appeal and may select from among those available to maximize the
                                               -5-
likelihood of success. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citing

Smith v. Robbins, 528 U.S. 259, 288 (2000)). “[W]e ‘indulge in a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance’”

and presume that counsel’s conduct is sound strategy. Welch v. Workman, 639 F.3d 980,

1010 (10th Cir. 2011) (quoting Strickland, 466 U.S. at 689).

       Mr. Durbin specifically challenges appellate counsel’s failure on direct appeal to

raise trial counsel’s failure: (1) to challenge Mr. Steudeman’s and Mr. Goodin’s child

hearsay testimony during trial; (2) to allow Mr. Durbin to testify; (3) to call certain

witnesses; (4) to prevent evidence of Mr. Durbin’s prior crimes from reaching the jury;

and (5) to impeach the verdict. 2 Mr. Durbin further challenges appellate counsel’s

failure: (6) to challenge Mr. Durbin’s sentence as violating the Ex Post Facto Clause; (7)

to challenge the verdict based on insufficient evidence; and (8) to challenge discovery

violations. Mr. Durbin also raises various other claims of ineffective assistance of his

appellate counsel that he did not raise at the district court.

       1. Failure to Challenge Mr. Goodin’s and Mr. Steudeman’s Testimony

       2
         The Tenth Circuit generally requires criminal defendants who were tried in
federal court to allege ineffective assistance of trial counsel in collateral post-conviction
proceedings rather than in direct appeals. See United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995) (en banc). Oklahoma requires state criminal defendants to raise
ineffective assistance of trial counsel claims on direct appeal so long as the relevant
information is contained in the trial record. Berget v. State, 907 P.2d 1078, 1084–85
(Okla. Crim. App. 1995), cert denied, 517 U.S. 1247 (1996). Mr. Durbin claimed in state
post-conviction collateral proceedings that his appellate counsel did not raise ineffective
assistance of trial counsel issues on direct appeal. He may therefore raise ineffective
assistance of appellate counsel in his § 2254 petition.

                                              -6-
       Mr. Durbin complains that his appellate counsel did not raise on appeal trial

counsel’s failure to request a § 2803.1 hearing before Mr. Steudeman’s testimony and

because he did not raise trial counsel’s failure to challenge the trial court’s findings after

it conducted a hearing before Mr. Goodin’s testimony. The OCCA held that a hearing

was not required before Mr. Steudeman’s testimony and that any deficiency in the trial

court’s ruling as to Mr. Goodin’s testimony was harmless error. We agree. Mr. Durbin

would not have prevailed in the district court on these issues and thus was not prejudiced

by the omission of these issues on direct appeal.

       2. Failure to Allow Mr. Durbin to Testify

       Mr. Durbin complains that appellate counsel did not raise on appeal that trial

counsel prohibited Mr. Durbin from testifying. He argues that his testimony about the

timeline of events and the victims’ behaviors would have diminished the victims’

credibility. Whether a criminal defendant testifies at his trial is the defendant’s decision.

See Harris v. New York, 401 U.S. 222, 225 (1971); Hooks v. State, 862 P.2d 1273, 1283

(Okla. Crim. App. 1993). Apart from Mr. Durbin’s unsupported allegations, nothing in

the record suggests that Mr. Durbin’s counsel prohibited him from testifying. See

Durbin, 2010 WL 6268375, at *6. Further, we agree with the magistrate judge that even

if Mr. Durbin’s counsel advised him not to testify, such a suggestion would be considered

a matter of trial strategy. Id. (citing Cameron v. State, 829 P.2d 47, 54–55 (Okla. Crim.

App. 1992)). Thus, appellate counsel’s failure to raise this issue did not constitute

ineffective assistance of counsel.
                                              -7-
       3. Failure to Call Certain Witnesses

       Mr. Durbin claims that his trial counsel failed to call certain witnesses that were

vital to his defense and that appellate counsel did not raise this issue on appeal. “[T]he

decision of which witnesses to call is quintessentially a matter of strategy.” Boyle v.

McKune, 544 F.3d 1132, 1139 (10th Cir. 2008), cert denied, 129 S. Ct. 1630 (2009).

According to Mr. Durbin, these witnesses would have testified to many of the same

matters as other defense witnesses; namely, the victims’ reputation for lying and Mr.

Durbin’s for good character. After reviewing the record, we cannot say that trial

counsel’s strategy was unreasonable. See Bullock v. Carver, 297 F.3d 1036, 1044, 1046

(10th Cir. 2002), cert denied, 537 U.S. 1093 (2002). We agree with the magistrate judge

that trial counsel’s failure to call these witnesses did not prejudice Mr. Durbin. Appellate

counsel’s failure to raise this issue did not constitute ineffective assistance of counsel.

       4. Improper Admission of Other Crimes Evidence

       Mr. Durbin complains that his trial lawyer’s failure to object to multiple references

to his past convictions of lewd molestation should have been raised on direct appeal. Mr.

Durbin, however, stipulated to these prior offenses at the beginning of the trial when he

agreed to a one-stage proceeding rather than a bifurcated proceeding. Under Okla. Stat.

tit. 22 § 860.1, in cases where a defendant is prosecuted for a second or subsequent

offense, the trial is generally conducted in two parts. In the first part, the jury decides

only whether the defendant is innocent or guilty, and there is no reference to the

defendant’s prior offenses. If the jury finds the defendant guilty, the jury then learns
                                              -8-
about the defendant’s prior offenses, is instructed on the law related to second and

subsequent offenses, and then determines the proper punishment.

       As the trial court explained to Mr. Durbin: “By asking this to be a one-stage

proceeding, the jury will know from the beginning that you have two prior convictions,

and there will not be a second stage where the District Attorney is required to prove

those.” ROA, vol.2, pt.2 at 10–11. Despite this explanation, Mr. Durbin chose a one-

stage proceeding. Because the jury was already aware of Mr. Durbin’s prior convictions

by way of stipulation, we cannot say that trial counsel’s failure to object to references to

Mr. Durbin’s prior convictions unfairly prejudiced Mr. Durbin. Thus, we agree with the

magistrate judge that appellate counsel’s failure to appeal this issue did not rise to the

level of ineffective assistance of counsel.

       5. Failure to Impeach the Verdict

       Mr. Durbin claims that his appellate counsel was ineffective in failing to appeal

trial counsel’s failure to impeach Mr. Durbin’s verdict. According to Mr. Durbin, the day

before he was sentenced, a juror called his trial counsel’s office and spoke to a secretary.

The juror allegedly said that the jury had not believed the victims’ testimony and had

convicted Mr. Durbin solely based on his past convictions. Mr. Durbin claims that trial

counsel should have immediately moved to impeach the jury’s verdict and that appellate

counsel’s failure to pursue this issue prejudiced his appeal.

       Okla. Stat. tit. 12 § 2606(B), which is nearly identical to FRE 606(b), states that:

       Upon an inquiry into the validity of a verdict or indictment, a juror shall not
                                              -9-
         testify as to any matter or statement occurring during the course of the
         jury’s deliberations or as to the effect of anything upon the juror’s mind or
         another juror’s mind or emotions as influencing the juror to assent to or
         dissent from the verdict or indictment or concerning the juror’s mental
         processes during deliberations.

Under the rules of evidence, this evidence of the jury’s deliberations would not have been

admissible. See Rushen v. Spain, 464 U.S. 114, 121 n.5 (1983) (“[A] juror generally

cannot testify about the mental process by which the verdict was arrived.”); Wood v.

State, 158 P.3d 467, 480 n. 29 (Okla. Crim. App. 2007). Further, Mr. Durbin has

presented no otherwise admissible evidence that this conversation actually occurred.

Because neither trial counsel nor appellate counsel would have succeeded in attempting

to impeach the verdict, appellate counsel was not ineffective for failing to bring this

claim.

         6. Ex Post Facto Sentencing

         The penalty provision of Okla. Stat. tit. 21 § 1123 was amended in 1992 to include

the imposition of life in prison or life in prison without parole for a third violation of that

section. Mr. Durbin’s first two felony convictions occurred before this provision was

added to § 1123. Mr. Durbin claims that his appellate counsel was ineffective by failing

to challenge Mr. Durbin’s sentence as violating the Ex Post Facto Clause of the United

States Constitution.

         For a criminal law to be ex post facto, it must be retrospective—applying to events

occurring before its enactment—and it must disadvantage the offender affected by it.

Weaver v. Graham, 450 U.S. 24, 29 (1981). The Ex Post Facto Clause prohibits
                                             -10-
punishment that is more severe than the punishment assigned by law when the act to be

punished occurred. Id. at 30. As the Supreme Court stated, “[c]ritical to relief under the

Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair

notice and governmental restraint when the legislature increases punishment beyond what

was prescribed when the crime was consummated.” Id.

       Despite Mr. Durbin’s first two violations occurring before the sentence enhancer

was enacted in 1992, his third and most recent violation in 2003 occurred well after it

was added to § 1123. The new provision did not affect Mr. Durbin’s punishment for his

two prior convictions. It only affected the punishment for Mr. Durbin’s most recent

violation of § 1123. Thus, Mr. Durbin had ample notice of the new enhanced

punishment. For these reasons, we agree with the magistrate judge and cannot say that

Mr. Durbin would have succeeded had his counsel raised this issue at trial or on appeal.

       7. Insufficient Evidence

       Mr. Durbin claims that his appellate counsel was ineffective because he failed to

challenge the sufficiency of the evidence for three of Mr. Durbin’s convictions. Under 28

U.S.C. § 2254(e)(1) habeas review, state court determinations of factual issues are

presumed to be correct, and the petitioner’s burden of rebutting the presumption is by

clear and convincing evidence. Although there was conflicting testimony at trial, the

majority of the testimony supported Mr. Durbin’s convictions. We have reviewed the

record, Mr. Durbin’s petition, and the controlling law. Mr. Durbin has not persuaded us

that the OCCA’s finding of sufficiency was incorrect or that there was insufficient
                                            -11-
evidence to support Mr. Durbin’s convictions. Thus, we agree with the magistrate judge

that Mr. Durbin’s appellate counsel could not be considered ineffective in failing to bring

this claim on direct appeal.

       8. Discovery Violations

       Mr. Durbin claims that appellate counsel was ineffective by failing to object to

various discovery errors, including his trial counsel’s inability to interview the victims

before trial and to obtain reports from the victims’ counselors. He also complains about

receiving inadequate summaries of the victims’ interviews. Although it is not clear that

Mr. Durbin has raised these issues in his current petition, he did raise them at the district

court. Out of an abundance of caution, we will discuss them here.

       Mr. Durbin appears to argue that his counsel’s inability to obtain this information

violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Brady

holds that suppression of evidence favorable to the defendant by the prosecution violates

due process when the evidence is material to either the defendant’s guilt or punishment.

373 U.S. at 87. Evidence is material if there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have been different. United

States v. Bagley, 473 U.S. 667, 682 (1985).

       Mr. Durbin appears to assert that not having this information caused surprise at

trial and affected his ability to cross-examine witnesses. He does not explain, however,

how having the information would have facilitated his defense and, more importantly,

fails to show that any exculpatory evidence was withheld from him. After reviewing the
                                             -12-
record, we conclude, along with the magistrate judge, that Mr. Durbin’s alleged inability

to obtain this information did not affect the outcome of his trial and did not constitute

ineffective assistance of appellate counsel.

       Lastly, Mr. Durbin appears to argue that these discovery issues violated Okla. Stat.

tit. 12 § 2803.1’s requirement that, before a statement made by a child concerning

physical abuse or sexual contact will be admitted, the proponent of that statement must

inform the adverse party and provide the particulars of the statement at least ten days

before the proceedings. Section 2803.1, however, applies to hearsay, not the actual

testimony of children. The victims’ in court testimony was not hearsay. Section

2803.1’s procedural requirements therefore do not apply. We agree with the magistrate

judge that appellate counsel’s failure to challenge these discovery issues did not rise to

the level of ineffective assistance of counsel.

       9. Other Issues Not Raised Below

       Mr. Durbin attempts to raise additional issues in his appellate brief that he did not

bring at the district court, such as denial of a request for appointment of counsel, denial of

a motion for introduction of transcripts of the preliminary hearing into the record, and

improper admission of hearsay evidence that was the result of leading questions.

Because we do not generally consider issues raised for the first time on appeal, Rhine v.

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000), we do

not address these issues.


                                               -13-
                                   III. CONCLUSION

       This court has reviewed Mr. Durbin’s application for a COA and his appellate

brief, the Report and Recommendation, the district court’s order, and the entire record on

appeal pursuant to the Miller-El v. Cockrell framework. He has failed, as to all of his

claims, to show any denial of a constitutional right. The district court’s resolution of Mr.

Durbin’s claims is not reasonably subject to debate, and the claims are not adequate to

deserve further proceedings.

       Because Mr. Durbin has not “made a substantial showing of the denial of a

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

this court denies Mr. Durbin’s request for a COA and dismisses this appeal.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




                                            -14-
