                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  November 6, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT



 DOVELL “B.” BATTLE,

                 Petitioner-Appellant,                    No. 09-5083
          v.                                             (N.D. of Okla.)
 RANDALL WORKMAN, Warden                    (D.C. No. 4:06-CV-00112-TCK-FHM)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Dovell B. Battle, an Oklahoma state prisoner, seeks to appeal the denial of

his federal habeas petition. Proceeding pro se in federal district court, Battle

claimed that the state trial court erred when it (1) refused to accept his guilty

plea, (2) then allowed the victim to identify him from the witness stand, and (3)

provided a legally incorrect jury instruction. He also alleged that his lawyers

were constitutionally deficient at trial and on appeal. The district court denied


      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Battle’s habeas petition on the merits with respect to the in-court identification

and a portion of his ineffective assistance of counsel claims. The district court

held that Battle’s guilty plea, jury instruction, and other ineffective assistance

claims were procedurally barred.

      Proceeding pro se on appeal, 1 Battle reargues the issues he raised in district

court and brings new claims based on the state trial court’s rejection of his parole

eligibility instruction, the admission of a detective’s testimony, and his sentence

being “excessive.” Battle fails to demonstrate that reasonable jurists would find

the district court’s assessment of his constitutional claims and its procedural

rulings debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Exercising jurisdiction under 28 U.S.C. § 2253, we DENY a certificate of

appealability (COA) and DISMISS the appeal.

                                   I. Background

      This case arises out of the robbery of Golden Pawn Shop in Tulsa,

Oklahoma. The owner of the pawn shop helped a man and a woman browse

through several items. After more than an hour inside the store, the man jumped

behind the clerk’s counter and sprayed the owner with mace or pepper spray. The

assailants fled the store with several dozen rings worth around $6,000 in total.

Three days later, a woman attempted to sell some of the stolen rings back to the


      1
        We construe Battle’s claims liberally because he proceeds pro se. See
Garcia v. Lemaster, 439 F.3d 1215, 1217 (10th Cir. 2006).

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same pawnshop. The owner alerted police, and the woman was arrested. She

later claimed that she had purchased the rings two days prior from Battle and

another woman.

      Prosecutors initially agreed to recommend a four-year sentence for Battle if

he pleaded guilty to Knowingly Concealing Stolen Property. The state trial judge

rejected the plea bargain and the case went to trial on more serious charges that

took into account Battle’s prior felonies. At trial, prosecutors presented

substantial evidence that Battle was the man who had robbed Golden Pawn Shop,

including (1) testimony of the woman police arrested who claimed she bought the

stolen rings from Battle, (2) Battle’s accomplice’s testimony that she had

participated in the robbery with Battle, and (3) the owner’s identification of

Battle as the robber.

      A jury found Battle guilty, and he was sentenced to 120 years in prison.

                                   II. Discussion

      Battle brings nearly twenty claims on appeal. For the sake of clarity, we

divide them into four groups based on the applicable law. First, the district court

reviewed a set of claims—all centering on the alleged ineffective assistance of

Battle’s appellate counsel—de novo because the state courts had applied incorrect

federal law. On a second set of claims, the state courts had correctly applied

federal law, and therefore the district court used the deferential standard of

review created in the Antiterrorism and Effective Death Penalty Act of 1996

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(AEDPA). Third, the district court held several claims were procedurally barred

under state law. Fourth, Battle asserts several claims on appeal that he altogether

failed to argue in his habeas petition.

      We address each set of claims in turn.

      A. Claims Reviewed De Novo

      The district court properly reviewed Battle’s ineffective assistance of

appellate counsel claims de novo. Battle sought post-conviction relief in state

court for six claims of ineffective assistance of appellate counsel. Both the state

district court and the Oklahoma Court of Criminal Appeals (OCCA) applied the

ineffectiveness standard in Webb v. State, 835 P.2d 115 (Okla. Crim. App. 1992),

to Battle’s claims.

      The state district court cited Webb for the proposition that “[t]he mere fact

that counsel fails to recognize the factual or legal basis for a claim, or fails to

raise the claim despite recognizing it, is not sufficient to preclude enforcement of

a procedural default.” R., Vol. 1 at 138 (quoting Webb, 835 P.2d at 116). While

that conclusion may be a corollary of Strickland v. Washington, 466 U.S. 668

(1984), it cannot substitute for the thorough review of counsel’s actions that

Strickland requires. See Strickland, 466 U.S. at 688 (instructing courts to

consider “all the circumstances” surrounding counsel’s actions). Thus, the

district court was correct to find that the state courts had not applied controlling




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federal law and it properly reviewed the claims de novo. See Malicoat v. Mullin,

426 F.3d 1241, 1248 (10th Cir. 2005).

      Under Strickland, counsel provides ineffective assistance when his

representation does not meet “an objective standard of reasonableness,”

Strickland, 466 U.S. at 688, and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “When a habeas petitioner alleges that his appellate

counsel rendered ineffective assistance by failing to raise an issue on direct

appeal, we first examine the merits of the omitted issue.” Hawkins v. Hannigan,

185 F.3d 1146, 1152 (10th Cir. 1999). Only when the issue has merit do we then

apply Strickland to determine if appellate counsel’s assistance was

unconstitutionally ineffective. Id. We address each claim.

      1. Failure to investigate alibi witnesses

      Battle argues his trial counsel was ineffective because she failed to

investigate alibi witnesses, and his appellate counsel was ineffective because he

failed to raise that ineffective assistance of trial counsel claim. The federal

district court found that appellate counsel made a strategic decision not to raise

the ineffective assistance claim and, besides, Battle had made no plausible

showing of prejudice.

      The district court’s judgment is not reasonably debatable or wrong.

Battle’s appellate counsel did investigate his alibi defense even though the

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attorney acknowledged that he did not think “this information will get [Battle’s]

case reversed.” R., Vol. 2 at 515. Upon investigation, however, the appellate

counsel found no evidence—except for Battle’s bare assertion—that Battle had

identified possible alibis for trial counsel. Furthermore, appellate counsel

concluded that the single affidavit of a witness who claimed Battle was not at the

crime scene would not have made out a viable ineffective assistance of trial

counsel claim. Id. at 516. Given the evidence, counsel’s professional judgment

was reasonable.

      2. Failure to utilize the accomplice’s confession

      Next, Battle argues his trial counsel provided ineffective assistance when

she failed to use his accomplice’s confession, and his appellate counsel was

ineffective because he failed to raise this claim. This argument is meritless and,

consequently, the district court’s denial of relief on the claim is not reasonably

debatable or wrong.

      The decision not to introduce Battle’s accomplice’s confession was

undoubtedly strategic. As appellate counsel noted in correspondence with Battle,

the tape references Battle’s former convictions—likely prejudicial to Battle—and

in it his partner alleges that Battle participated in the crime. Id. Additionally, the

alleged benefit Battle would derive from the confession—a weak suggestion that

his accomplice’s husband was in fact the perpetrator—is contradicted by Battle’s

own admission that he possessed the stolen rings. Id.

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      3. Failure to object to an “all white” jury

      Battle alleges that the jury at his trial was composed entirely of Caucasians,

and that fact alone proves a constitutional violation. Trial counsel did not raise

an objection regarding jury composition, and Battle argues his appellate counsel

was ineffective when he failed to make this ineffective assistance of trial counsel

argument. By itself, the racial composition of a jury does not present a

cognizable constitutional claim. Perhaps Battle intends to bring a claim under

Batson v. Kentucky, 476 U.S. 79 (1986). Batson violations occur when a

prosecutor uses his peremptory challenges purposefully to discriminate against a

racial group. Batson, 476 U.S. at 89. As the district court noted, “nothing in the

record reflects the racial composition of [Battle’s] jury or jury pool,” R., Vol. 2 at

535, and Battle does not allege discriminatory peremptory challenges. Because

the jury composition claim is meritless, the district court’s denial of relief on the

claim is not reasonably debatable or wrong.

      4. Counsel’s conflict of interest

      Battle claims that his trial counsel violated the attorney-client relationship

because she did not inform him about a potential conflict of interest. Battle

argues he was denied effective assistance of appellate counsel when his counsel

failed to make this ineffective assistance of trial counsel argument on appeal.

      This claim lacks merit, and the district court’s denial of relief on the claim

is not reasonably debatable or wrong. Battle did not raise a Sixth Amendment

                                          -7-
objection at trial, and therefore to prevail on his conflict of interest claim, he

“must demonstrate that an actual conflict of interest adversely affected his

lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Although

Battle’s precise argument is difficult to discern, he appears to argue that simply

because his trial counsel had represented a government witness in a prior matter,

counsel was unable to provide Battle with effective assistance. In this situation,

we have held that ineffective assistance is proven only when “there is a

substantial and particular relationship between the two cases.” United States v.

Bowie, 892 F. 2d 1494, 1501 (10th Cir. 1990). Here, the witness was in prison

for various drug-related offenses and assault and battery. Battle does not allege

that the witness’s offenses were related to the robbery at issue in Battle’s case.

      Regardless of the relationship between the witness’s and Battle’s crimes,

Battle fails to show that his trial counsel’s conflict of interest adversely affected

her performance. Battle makes no specific allegations of ineffective assistance

due to the alleged conflict of interest, and we can discern none from the record.

The witness who Battle’s counsel had previously represented specifically

acknowledged his prior convictions. Evidence challenging the witness’s

credibility thus was presented at trial.

      5. Failure to challenge the trial court’s refusal to accept the guilty plea

      Battle alleges the trial court improperly refused to accept his guilty plea to

the charge of Knowingly Concealing Stolen Property, and because his appellate

                                           -8-
counsel did not make this argument, the appellate counsel was ineffective. This

claim is meritless, and the district court’s denial of relief on the claim is not

reasonably debatable or wrong. “A criminal defendant does not have an absolute

right under the Constitution to have his guilty plea accepted by the court,” North

Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970), and Battle does not allege that

state law gives him a similar right. Because Battle lacks a constitutional or

statutory right to have his guilty plea accepted, his appellate counsel’s failure to

raise this claim did not constitute ineffective assistance of counsel.

      6. Failure to challenge the jury instruction on accomplice testimony

      Battle argues that one of the jury instructions at trial was given incorrectly

and appellate counsel’s failure to raise this issue qualified as ineffective

assistance. This claim is meritless, and the district court’s denial of relief on the

claim is not reasonably debatable or wrong. The challenged jury instruction was

correct at the time it was given and it was only modified by a state court decision

after Battle’s direct appeal. See Pink v. State, 104 P.3d 584, 593 (Okla. Crim.

App. 2004) (altering the disputed jury instruction’s language from “may” to

“must”). Obviously, appellate counsel’s assistance could not have been

ineffective merely because he failed to anticipate a change in the law before it

occurred.




                                           -9-
      B. Claims Reviewed under AEDPA

      The district court reviewed Battle’s in-court identification claim and one of

his ineffective assistance of trial counsel claims under AEDPA. When a state

prisoner files a federal habeas petition, federal courts only may grant relief if the

state court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law” or “was based on an unreasonable determination

of the facts . . . .” 28 U.S.C. § 2254(d). The federal district court held that the

OCCA properly applied controlling federal law to both of the claims, and it

affirmed the OCCA’s judgment. When considering whether to grant a COA, we

ask whether reasonable jurists would find the district court’s judgments debatable

or wrong. We find they would not.

      1. In-court identification of Battle

      Battle challenges the victim’s in-court identification of him as the robber.

He alleges the victim had been unable to identify him at a preliminary hearing or

in a photographic line up, and that her varied descriptions of the perpetrator raise

constitutional concerns about the fairness of admitting her identification. The

OCCA rejected Battle’s claim, finding under the totality of the circumstances that

the in-court identification was proper, or in the alternative, it was harmless error.

The federal district court held that the OCCA’s ruling reasonably applied the

correct Supreme Court precedent.




                                         -10-
      The district court’s holding is correct and beyond reasonable debate. Even

a “suggestive and unnecessary” identification is constitutional “so long as the

identification possesses sufficient aspects of reliability.” Manson v. Brathwaite,

432 U.S. 98, 106 (1977). Courts assess reliability by examining the totality of the

circumstances and weighing “the opportunity of the witness to view the criminal

at the time of the crime, the witness’ degree of attention, the accuracy of the

witness’ prior description of the criminal, the level of certainty demonstrated by

the witness at the confrontation, and the length of time between the crime and the

confrontation.” Neil v. Biggers, 409 U.S. 188, 196, 199–200 (1972).

      It was not unreasonable for the trial court to find the victim’s identification

sufficiently reliable to admit into evidence. She testified that she observed Battle

for over an hour in her well-lit store and stated she was “positive” that Battle was

the man who robbed her. R., Vol. 2 at 416. Battle contends that her testimony

was unreliable because she could not identify him in photographs and said he had

hair when, in fact, he is bald. However, the victim explained the alleged

deficiencies in her testimony: the pictures of Battle did not look like him in

person, and she maintains that she consistently told the police that Battle wore a

hat during the robbery.

      Even if the trial court unreasonably applied the Biggers factors and should

not have permitted the in-court identification of Battle, the identification did not

have a “substantial and injurious effect or influence in determining the jury’s

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verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citation

omitted). The victim was subject to vigorous cross-examination about her

identification of Battle. The jury also had two other witnesses’ testimony upon

which it could base its conviction. As the district court noted, Battle’s

accomplice testified that Battle and she robbed the pawn shop together, and the

woman arrested at the pawnshop identified Battle in court as the person who sold

her the stolen rings.

         2. Trial counsel’s failure to request a transcript of the preliminary hearing

         Battle argues that his trial counsel’s failure to request a transcript of the

preliminary hearing constituted ineffective assistance of counsel. Citing

Strickland, the OCCA rejected Battle’s claim. R., Vol. 1 at 48. The federal

district court held that the state court’s ruling was not unreasonable because

Battle failed to show the lack of a transcript satisfied Strickland’s prejudice

prong.

         The district court’s ruling is correct and beyond reasonable debate.

Assuming for purposes of argument that failing to request the transcript was

unreasonable, we can discern no prejudice that the transcript’s absence caused

Battle’s defense. Battle’s trial attorney thoroughly cross-examined the victim

whose identification of Battle might have been called into question because of the

preliminary hearing. The trial counsel even called as a witness the court reporter

from the preliminary hearing to testify about what the victim said. And even if

                                            -12-
we found the lack of a transcript prejudiced Battle’s defense in some way,

certainly he would be unable to show “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

      C. Procedurally Barred Claims

      The district court held that six of Battle’s claims were procedurally barred

because he failed to raise them in his direct appeal. The defaulted claims relate to

the state trial court’s refusal of Battle’s guilty plea, an allegedly deficient jury

instruction, and several ineffective assistance of trial counsel claims. The

underlying actions by the trial counsel and court complained of in this Section of

the Order are identical to the underlying actions discussed in Section II.A., above.

      “In a habeas proceeding, we do not address issues that have been defaulted

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

cause and prejudice or a fundamental miscarriage of justice is shown.” Maes v.

Thomas, 46 F.3d 979, 985 (10th Cir. 1995) (citing Coleman v. Thompson, 501

U.S. 722, 750 (1991)). To be independent, the procedural ground must be based

solely on state law. Clearly, a bar based on state procedure alone constitutes an

independent state ground. To be adequate, the procedural ground “must be

strictly or regularly followed and applied evenhandedly to all similar claims.”

Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999). We have held,

generally, “Oklahoma’s procedural rule barring post-conviction relief for claims

                                          -13-
petitioner could have raised on direct appeal constitutes an independent and

adequate ground” sufficient to bar federal habeas review. Id. at 1175; accord

Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993) (finding Oklahoma courts

have applied the procedural bar “not inconsistently” to defaulted constitutional

claims). Battle’s claims related to the trial court’s refusal to accept his guilty

plea and the disputed jury instruction are thus barred.

      We have conducted a more searching inquiry into a state’s procedural

default rule when it is applied to ineffective assistance of trial counsel claims.

The default will prevent federal habeas review when, first, “trial and appellate

counsel differ,” and, second, “the ineffectiveness claim can be resolved upon the

trial record alone.” English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998).

Battle was represented by different appellate and trial counsel, and all but his

claim related to alibi witnesses can be resolved on the trial record. Therefore,

Battle’s ineffective assistance of trial counsel claims related to his accomplice’s

confession, the racial composition of the jury, and the trial counsel’s conflict of

interest are barred.

      The remaining ineffective assistance of trial counsel claim is barred, as

well. It is not clear whether the remaining claim, which centers on trial counsel’s

alleged failure to investigate alibi witnesses, can be decided on the trial record.

On the one hand, an alleged failure of counsel to investigate witnesses likely

would involve evidence extrinsic to the trial. On the other hand, it is far from

                                          -14-
certain that Battle even has alleged the existence of alibi witnesses whose

testimony would satisfy Strickland’s demanding prejudice prong. Assuming this

claim could not be decided on the trial record, it still is barred because Battle fails

to make “specific allegations . . . as to the inadequacy of the state procedure” to

supplement the trial record. Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir.

1999). That is, Battle does not allege that Oklahoma’s procedure for

supplementing the trial record prevented him from building an appropriate record

in his direct appeal. Because Battle has not “place[d] that issue before the district

court in a clear way,” the district court correctly held that his claim was

procedurally barred. Id.

      Battle can overcome these otherwise valid procedural bars by

demonstrating either cause for the default and actual prejudice due to it, or that a

fundamental miscarriage of justice would occur if the default were enforced.

Coleman, 501 U.S. at 750. Battle is unable to show cause for his default. He

argues that his failure to raise the defaulted claims on direct appeal was due to the

ineffective assistance of his appellate counsel. However, we have already

explained how each of Battle’s ineffective assistance of appellate counsel claims

either lacked merit or did not meet Strickland. Similarly, Battle is not able to

show that a fundamental miscarriage of justice would occur if we upheld the

procedural bar to hearing his claims. “To meet this test, a criminal defendant

must make a colorable showing of factual innocence.” Beavers v. Saffle, 216 F.3d

                                          -15-
918, 923 (10th Cir. 2000). Battle must “show that it is more likely than not that

no reasonable juror would have convicted him” in light of new evidence. Schlup

v. Delo, 513 U.S. 298, 327 (1995). It does not appear that Battle claims he is

factually innocent. See R., Vol. 2 at 493–94. But even if he did make that claim,

he provides no new evidence to support the conclusion that no reasonable juror

would have convicted him.

      In sum, the district court’s holding that six of Battle’s claims were

procedurally defaulted is correct and beyond reasonable debate.

      D. Waived Claims

      Finally, Battle raises five claims on appeal that he did not bring before the

district court. He argues that his trial counsel was ineffective because she failed

to request a suspect line up before the preliminary hearing and did not sufficiently

challenge the victim regarding her identification of Battle. He also claims the

trial court erred when it admitted a detective’s testimony regarding the

photographic line up, refused Battle’s parole eligibility instruction, and sentenced

him to more than 100 years in prison.

      We decline to consider the claims Battle did not raise in federal district

court. Generally, “a federal appellate court does not consider an issue not passed

upon below.” In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (quoting

Singleton v. Wulff, 428 U.S. 106, 120 (1976)). We apply this waiver rule

regularly. See, e.g., Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999); Jones

                                        -16-
v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000). Battle provides no reasons for his

failure to raise these claims in district court, and, consequently, we decline to

consider them.

                                  III. Conclusion

      For the foregoing reasons, we DENY a certificate of appealability (COA)

and DISMISS the appeal.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Circuit Judge




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