                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                April 8, 2008
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 JESSIE JAMES DALTON,

                 Petitioner-Appellant,                  No. 07-6126
          v.                                    Western District of Oklahoma
 WALTER DINWIDDIE, Warden,                      (D.C. No. CIV-05-1182-HE)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON and McCONNELL, Circuit Judges.



      Jessie James Dalton, a state prisoner proceeding with retained counsel,

seeks a certificate of appealability (COA) that would allow him to appeal from

the district court’s order denying his habeas corpus petition under 28 U.S.C. §

2254. See 28 U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Dalton has

failed to make “a substantial showing of the denial of a constitutional right,” we

deny his request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                    Background

      In 2003, Jessie Dalton, along with Paul Duran, Jr., and Warren Plank,

invaded the Ray family home, intending to rob it. They entered the home through

the bedroom, where they encountered Darnell Ray and his wife, Stella Ray. After

forcing the couple onto the bed, the three realized that the Ray’s nineteen-year-

old son, Billy Wayne Ray, was also home; one of the men went into the next

room to find him while the other two remained in the bedroom. Upon hearing a

shot, Mrs. Ray ran out of the bedroom, where she saw Billy Wayne struggling

with another male over possession of a rifle. Billy Wayne told his mother that the

men were “shooting blanks.” Aplt.’s Br., App. 1, at 3. Another one of the robbers

then came up behind Mrs. Ray and shot Billy Wayne in the head, killing him.

The three robbers fled. At issue throughout the trial was who actually fired the

lethal shot; both Plank and Duran, who pleaded guilty to robbery with firearms,

testified at trial that Mr. Dalton was the shooter.

      Mr. Dalton was charged with one count of first degree murder in violation

of Okla. Stat. tit. 21 § 701.7(b). He was tried and convicted by an Oklahoma

jury; the jury recommended that he be sentenced to life imprisonment without

parole. The sentencing court accepted this recommendation.

      Mr. Dalton filed a direct appeal with the Oklahoma Court of Criminal

Appeals (OCCA). The OCCA denied his claims on July 12, 2004. Mr. Dalton

then filed a petition for a writ of habeas corpus in the United States District Court

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for the Western District of Oklahoma. The district court referred the case to the

magistrate judge, who found that all of Mr. Dalton’s claims were without merit.

The district court accepted the magistrate judge’s recommendations and held that

the state court had not arrived at a conclusion that “was contrary to, or involved

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

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The district

court also denied Mr. Dalton’s motion for a certificate of appealability (COA).

      Mr. Dalton requests that we grant a COA on whether the trial court’s

exclusion of impeachment evidence violated his Sixth Amendment confrontation

rights. Because he fails to make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we affirm the district court’s denial

of the COA.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to




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proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      Mr. Dalton argues that the trial court violated his Sixth Amendment

confrontation rights when it excluded (1) evidence of Mr. Ray’s prior convictions;

(2) evidence of Mr. Ray’s alleged bootlegging activity; and (3) a letter Warren

Plank allegedly wrote stating that he did not know the identity of the shooter. All

of this evidence would have been used for impeachment purposes. Mr. Dalton

also complains about alleged violations of Oklahoma law. Habeas corpus relief,

however, is not available for violations of state law, and we therefore do not

consider these arguments. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

      The Confrontation Clause guarantees an accused the right “to be confronted

with the witnesses against him.” U.S. Const. amend. VI. “The main and essential

purpose of confrontation is to secure for the opponent the opportunity of cross-

examination.” Davis v. Alaska, 415 U.S. 304, 315–16 (1981) (internal quotation

marks omitted). A defendant, however, does not have an unlimited right to cross-

examination, and the trial court retains “wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based

on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Delaware

v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (“[T]he Confrontation Clause

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guarantees an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense might

wish.”).

      If the court finds that there has been a Confrontation Clause violation, it

must then determine whether the error complained of “contribute[d] to the verdict

obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). The appropriate

inquiry “is whether, assuming that the damaging potential of the cross-

examination were fully realized, a reviewing court might nonetheless say that the

error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684.

      Mr. Dalton complains that the trial court erred when it refused to let him

cross-examine Mr. Ray about his prior 1970 conviction for assault and battery

with a dangerous weapon and when it denied the admission of impeachment

evidence about Ray’s alleged bootlegging activity. According to Mr. Dalton, this

impeachment evidence would have revealed Ray’s bias to the jury and would have

undermined his credibility. The trial court excluded the assault and battery

conviction because it was over ten years old and was therefore stale, and because

the evidence of “bootlegging” was not relevant to showing bias. The OCCA

affirmed on direct appeal, holding that there was no abuse of discretion in

excluding the conviction and that any bias Ray might have had was already

“obvious from the losses he suffered . . . .” Aplt.’s Br., App. 1, at 8.




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      In Davis v. Alaska, the Supreme Court distinguished between a “general

attack” on witness credibility and a more particular attack “directed toward

revealing possible biases, prejudices, or ulterior motives as they may relate

directly to issues or personalities in the case at hand.” Davis, 415 U.S. at 316;

see also Boggs v. Collins, 226 F.3d 728, 736–37 (6th Cir. 2000). Only the latter

form of questioning is clearly protected under the Sixth Amendment. Id. at 316,

320. It is within the trial court’s discretion to limit more general attacks on the

witnesses’ credibility. See Quinn v. Haynes, 234 F.3d 837, 845 (4th Cir. 2000);

Boggs, 226 F.3d at 739; Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996);

United States v. Bartlett, 856 F.2d 1071, 1088–89 (8th Cir. 1988); Hughes v,

Raines, 641 F.2d 790, 793 (9th Cir. 1981); Mills v. Estelle, 552 F.2d 119, 122–23

(5th Cir. 1977); see also Davis, 415 U.S. at 321 (Stewart, J., concurring) (“I

would emphasize that the Court neither holds nor suggests that the Constitution

confers a right in every case to impeach the general credibility of a witness

through cross-examination about his past delinquency adjudications or criminal

convictions.”). It is therefore acceptable under Davis for the trial court to impose

reasonable restrictions on this type of cross-examination. 415 U.S. at 316.

      Mr. Dalton did not intend to cross-examine Ray about his prior conviction

in order to “establish bias against the defendant or for the prosecution.” Hughes,

641 F.2d at 793. Rather, the assault and battery conviction “merely would have

been [an attempt] to attack the general credibility of the witness on the basis of an

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unrelated prior incident.” Id. Given that the conviction occurred thirty-seven

years ago, the connection between this impeachment evidence and Ray’s current

credibility is minimal. There was therefore no Confrontation Clause violation.

      Mr. Dalton also argues that he should have been permitted to introduce

impeachment evidence of Mr. Ray’s alleged bootlegging activity. This claim is

without merit. It is unclear why bootlegging indicates that Ray had a motive to

identify Mr. Dalton as the shooter. Additionally, unlike in cases where there is

concrete evidence that the witness was actually involved in other criminal activity

that might have prompted the witness to strike a deal with the prosecutor, see

Davis, 415 U.S. at 316–18, Mr. Dalton concedes that he did not have any

independent proof of Mr. Ray’s bootlegging activity that he could use for

impeachment. Aplt.’s Br. 21. It is well within the trial court’s discretion to

restrict accusations of illicit activity absent any corroborating proof; a different

rule would allow defendants to lodge charges of impropriety at the witness in the

hopes of tainting the jury’s perspective. We therefore deny a COA on this ground

as well.

      We similarly find that Mr. Dalton has not made a substantial showing of a

violation of his constitutional rights based on the trial court’s exclusion of the

letter allegedly written by Warren Plank. The prosecutor objected when defense

counsel attempted to use the letter, in which Plank stated that he did not know the

identity of the shooter, as impeachment, because it had not been disclosed to the

                                          -7-
prosecution prior to questioning. Though defense counsel alleged that he only

received the letter during the lunch break immediately prior to questioning, the

trial court excluded the letter, as it had not been disclosed during an in camera

hearing following lunch—a violation of Oklahoma’s discovery code. Aplt.’s Br.,

App. 1, at 22.

      Under Oklahoma’s discovery code, a trial judge may exclude evidence

when a discovery violation occurs. Okla. Stat. tit. 22 § 2002(E)(2), and this

comports with the Confrontation Clause so long as the restrictions are not

“arbitrary or disproportionate to the purposes they are designed to serve.”

Michigan v. Lucas, 500 U.S. 145, 149, 151 (1991) (quoting Rock v. Arkansas, 483

U.S. 44, 56 (1987)). The district court’s restriction here was reasonable in light

of the competing state interests. “The Sixth Amendment does not confer the right

to present testimony free from the legitimate demands of the adversarial system.”

United States v. Nobles, 422 U.S. 225, 241 (1975). The defendant must “comply

with established rules of procedure and evidence designed to assure both fairness

and reliability in the ascertainment of guilt and innocence.” Chambers v.

Mississippi, 410 U.S. 284, 302 (1973). Instead of disclosing the letter upon first

discovering it, counsel attempted to take the government by surprise by

introducing the letter during cross-examination. This disregard for Oklahoma’s

evidentiary rules justifies the trial court’s exclusion of the evidence. See Taylor

v. Illinois, 484 U.S. 400, 417 (1988) (discovery violation amounted to “willful

                                         -8-
misconduct” and was designed to obtain a “tactical advantage;” exclusion was

therefore justified).

                                  Conclusion

      Accordingly, we DENY Mr. Dalton’s request for a COA and DISMISS this

appeal.

                                             Entered for the Court,

                                             Michael W. McConnell
                                             Circuit Judge




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