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

                            FOR THE TENTH CIRCUIT                            January 29, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 JIMMY NAZARIO, JR.,

       Petitioner - Appellant,

 v.                                                          No. 18-6086
                                                     (D.C. No. 5:16-CV-01243-HE)
 JOE ALLBAUGH,                                               (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      An Oklahoma state-court jury convicted Jimmy Nazario Jr. of second-degree

murder. See Okla. Stat. tit. 21, § 701.8. Before the court is Nazario’s appeal of the

district court’s denial of his application for relief under 28 U.S.C. § 2254. By

separate order we granted a certificate of appealability on three claims:

      1.     Was trial counsel’s performance ineffective in the questioning of
             Priscilla Munoz and Albert Dutchover?



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
      2.        Was trial counsel’s performance ineffective for failing to request an
                instruction on first-degree manslaughter?
      3.        Did the [federal] district court err in not conducting an evidentiary
                hearing?
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court.

                                               I.

      As summarized by the district court,1 the evidence at trial established the

following:

              [Nazario], Priscilla Munoz, Albert Dutchover, and Jose Hernandez
      were walking towards [Nazario’s] home at the Motif Manor Apartments in
      Lawton, Oklahoma, when they encountered Ervin Manigault in the parking
      lot. Mr. Manigault approached the foursome, asking if they had been
      responsible for “tagging” graffiti on the apartments. Although
      Mr. Manigault’s friend, Kaneisha Plummer, described Mr. Manigault as
      calm and said his arms stayed at his sides while he spoke, Ms. Munoz and
      Mr. Dutchover described Mr. Manigault as agitated, yelling, and waving his
      arms in the air. [Nazario] shot Mr. Manigault in the chest, and then again
      in the back as the victim ran away. Mr. Manigault died from his wounds.
Aplt. App. at 80-81 (citations omitted).2 Nazario’s counsel argued that he acted in

self-defense.

      Nazario raised his two ineffective-assistance claims in his direct appeal in state

court. Regarding his counsel’s cross-examination of Munoz and Dutchover, the

Oklahoma Court of Criminal Appeals (OCCA), citing Strickland v. Washington,

466 U.S. 668, 689 (1984), held that Nazario failed to show that his trial counsel’s



      1
       The district court adopted the magistrate judge’s report and recommendation,
which included this factual summary.
      2
      Citations to the Appellant’s Appendix are to the amended appendix filed on
September 14, 2018.
                                               2
representation “fell below the wide range of reasonable professional conduct, or that

the result of the proceeding would have been different had counsel performed as he

now, in hindsight, would have preferred.” R. at 215. The OCCA also held that the

trial court did not err in failing to give an instruction on first-degree manslaughter

because there was no evidence “show[ing] that Nazario’s actions were aroused by

adequate provocation,” as that term is defined by state law. Id. at 216 & n.3. The

OCCA therefore concluded that his counsel were not ineffective in failing to request

that instruction.

       In the § 2254 proceeding the district court, having denied Nazario relief under

28 U.S.C. § 2254(d), also denied his request for an evidentiary hearing, citing Cullen

v. Pinholster, 563 U.S. 170, 185 (2011).

                                           II.

       To show constitutionally deficient performance by counsel, a prisoner must

establish both that counsel’s performance fell below an objective standard of

reasonableness and that there was prejudice as a result. See Strickland, 466 U.S.

at 688, 692. Further, because the OCCA considered and ruled on the merits of

Nazario’s ineffective-assistance claims, he is entitled to postconviction relief in

federal court only if the state court’s decision “was contrary to, or involved an

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

Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” § 2254(d)(1)-(2).

                                            3
      Nazario contends that the OCCA unreasonably applied Strickland. “A state

court decision involves an ‘unreasonable application’ of federal law if the state court

identifies the correct governing legal principle from Supreme Court decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Gonzales v.

Tafoya, 515 F.3d 1097, 1109 (10th Cir. 2008) (brackets and further internal quotation

marks omitted). “This is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86,

101 (2011).

      Under § 2254(d), a habeas court must determine what arguments or theories
      supported or, as here, could have supported, the state court’s decision; and
      then it must ask whether it is possible fairminded jurists could disagree that
      those arguments or theories are inconsistent with the holding in a prior
      decision of this Court.
Id. at 102. “It bears repeating that even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable.” Id.

                                           A.

      Nazario argues that his trial counsel was ineffective in failing to (1) impeach

Munoz and Dutchover with their prior inconsistent statements made during police

interviews and in their testimony at the preliminary hearing, and (2) elicit evidence

from these prior statements that was favorable to his claim of self-defense.3 But


      3
         Nazario argues in his opening brief that evidence not elicited on
cross-examination could also have supported a verdict of heat-of-passion
manslaughter instead of second-degree murder, or a lesser punishment. But he did
not raise this contention in his objections to the magistrate judge’s report and
recommendation. We therefore deem the argument waived. See Gardner v. Galetka,
568 F.3d 862, 871 (10th Cir. 2009).
                                            4
defense counsel had to be cautious in examining the two witnesses. Their testimony

was the only support for Nazario’s self-defense claim, so it was important that they

be sufficiently credible that the jury would credit this favorable evidence.

Impeaching their credibility could be counterproductive. And eliciting prior

inconsistent statements, even if their prior statements were more favorable to Nazario

than their trial testimony, posed significant risks. Defense counsel did attempt to

impeach Munoz and Dutchover to some extent with their prior inconsistent

statements, as well as their motives in testifying for the prosecution and their

potential bias. What is in question is their choice not to further undercut the overall

credibility of these two witnesses.

      An attorney’s “strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.” Strickland,

466 U.S. at 690. In particular, “counsel’s decisions regarding how best to

cross-examine witnesses presumptively arise from sound trial strategy.” Richie v.

Mullin, 417 F.3d 1117, 1124 (10th Cir. 2005). Here, there is no question that defense

counsel were fully informed of the relevant evidence. We cannot say that their

choice not to pursue further prior inconsistent statements was such obviously poor

strategy that the OCCA’s application of Strickland was objectively unreasonable.

Nazario has failed to show that the OCCA’s ruling “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.



                                           5
       Nazario also perfunctorily argues that the OCCA’s rulings on his

cross-examination claims rested on an unreasonable determination of the facts.

See 28 U.S.C. § 2254(d)(2) (permitting a court to grant relief when the state court’s

adjudication of a claim “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding”). But he fails to develop this contention sufficiently to allow for

appellate review. He does not state specifically what facts the OCCA unreasonably

determined, nor does he satisfy his burden under § 2254(d)(2) to rebut the presumed

correctness of the OCCA’s factual findings with clear and convincing evidence.

See Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (“[A] state court’s

factual findings are presumed correct, and the petitioner bears the burden of rebutting

that presumption by clear and convincing evidence.” (internal quotation marks

omitted)).

                                           B.

       Nazario next argues that his counsel were ineffective in failing to request a

jury instruction on first-degree manslaughter because the facts supporting the

self-defense instruction likewise supported a heat-of-passion manslaughter

instruction. The OCCA held that such an instruction was not warranted under

Oklahoma law.4 It therefore rejected Nazario’s contention that his counsel were

ineffective in failing to request it.


       4
        Nazario recognized in his district-court brief that the OCCA’s decision on the
propriety of the instruction was grounded in state law. See Aplt. App. at 60-64
                                           6
       Nazario contends that “the OCCA’s determination that a manslaughter

instruction was not supported on the facts was based on an unreasonable

determination of those very same facts.” Aplt. Opening Br. at 37. Although he

purports to seek relief under § 2254(d)(2), he once again fails to specify any facts

that the OCCA unreasonably determined in adjudicating this ineffective-assistance

claim. He argues instead that the evidence at trial, which he says the district court

“overlooked,” id., was legally sufficient to support a first-degree manslaughter

instruction. But this court will not reexamine the OCCA’s determination on a matter

of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accepting the

OCCA’s holding that an instruction on first-degree manslaughter was not warranted

under state law, we conclude that Nazario has failed to show that the OCCA

unreasonably applied Strickland in rejecting his claim that his counsel were

ineffective in failing to request that instruction.

                                            III.

       Last, Nazario contends that the district court erred in not conducting an

evidentiary hearing. He argues that because he tried to develop the facts in his

appeal to the OCCA by supplementing the record and seeking an evidentiary hearing,

the limitations on evidentiary hearings in the district court under 28 U.S.C.

§ 2254(e)(2) do not apply.


(citing Oklahoma authorities). He does not argue otherwise on appeal. See Aplt.
Opening Br. at 35, 37 (same). (Citations to the Appellant’s Opening Brief are to the
amended brief filed on September 14, 2018.)

                                             7
      Nazario is mistaken. Because the OCCA adjudicated his ineffective-assistance

claims on the merits, the district court reviewed those claims under § 2254(d).

See Cullen, 563 U.S. at 181. Review under § 2254(d)(2) is expressly limited to the

evidence that was presented in the state-court proceeding, see id. at 185 n.7, and the

Supreme Court held in Cullen that review under § 2254(d)(1) is likewise “limited to

the record that was before the state court that adjudicated the claim on the merits.”

Id. at 181. Thus, the district court did not err in denying Nazario’s request for an

evidentiary hearing.

                                          IV.

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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