                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       MAR 11 1997
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 GARY RANDALL HOXSIE,

             Petitioner - Appellant,

       v.                                             No. 95-2207

 DARELD KERBY, Warden; TOM
 UDALL, Attorney General for the
 State of New Mexico,

             Respondents - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                    (D. Ct. No. CIV-89-573-JB)



Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, New Mexico,
appearing for the Appellant.

Bill Primm, Assistant Attorney General (Tom Udall, Attorney General for the State
of New Mexico, with him on the brief), Santa Fe, New Mexico, appearing for the
Appellees.


Before TACHA, HENRY, and BRISCOE, Circuit Judges.


TACHA, Circuit Judge.
      Gary Randall Hoxsie, an inmate at the Central New Mexico Correctional

Facility, appeals an order of the district court adopting the magistrate judge’s

Findings and Recommended Disposition and dismissing Hoxsie’s petition for

habeas corpus pursuant to 28 U.S.C. § 2254. The magistrate found that Hoxsie’s

claims of prosecutorial misconduct and ineffective assistance of counsel were

without merit and denied his request for an evidentiary hearing. We construe

Hoxsie’s notice of appeal as an application for a certificate of appealability. See

Fed. R. App. P. 22(b); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert.

denied, No. 96-6621, 1996 WL 665079 (U.S. Jan 13, 1997). Because we find that

Hoxsie “has made a substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), we grant the certificate and exercise jurisdiction pursuant

to 28 U.S.C. § 2253. We affirm.

                                  BACKGROUND

      In 1983, a New Mexico state jury convicted Hoxsie of first-degree murder,

armed robbery, and conspiracy to commit armed robbery, resulting in a sentence

of life imprisonment. The testimony and evidence proffered at trial showed that

in the early morning of October 23, 1982, Hoxsie (the defendant) and John Waters

(Hoxsie’s co-defendant) left their apartment to look for Gary Suiter (the victim).

Suiter owed Hoxsie $275 in gambling debts. Hoxsie and Waters found Suiter at a

local restaurant. The three left the restaurant in Hoxsie’s pick-up truck and


                                         -2-
headed in the direction of Rio Rancho, New Mexico. Hoxsie drove to the north

beach area of the Rio Grande River, a remote, wooded area that Hoxsie

frequented. Hoxsie, who commonly carried a .357 Magnum in his truck, got into

a heated argument with Suiter concerning the gambling debt. Suiter was shot

with the .357 at close range in the hand, chest, and head. His jewelry was

removed and his body was dragged about thirty feet from the road to a bushy area

near the river. Hoxsie claimed that Waters killed Suiter. Waters, on the other

hand, claimed he stayed in the truck and Hoxsie killed Suiter. Hoxsie and Waters

got back in the truck and drove away. Within days of the murder, Hoxsie

contacted several people about selling Suiter’s jewelry. The authorities arrested

Hoxsie in possession of the victim’s jewelry.

      The record indicates that Hoxsie offered three different versions of Suiter’s

death. First, in his pretrial statement to the police, Hoxsie stated that Waters

wanted to steal Suiter’s jewelry but that he would not help Waters. According to

the statement, Waters then shot the victim. Second, in his opening statement to

the jury, Hoxsie’s trial counsel set up a “defense of another” theory and told the

jury that the evidence would show that Waters shot Suiter to protect Hoxsie from

attack. At trial, however, neither Hoxsie nor Waters testified consistent with this

theory, which was clearly inconsistent with the forensic evidence admitted at trial

showing close range shots to Suiter’s head and chest. At trial, Hoxsie admitted


                                         -3-
that the story had been “concocted.” Instead, Hoxsie offered a third version of

the events, testifying that after he and Suiter began to argue, Suiter “took a

swing” at him, at which time Waters left the truck and approached Hoxsie to find

out what was happening. Hoxsie testified that he told Waters to stay out of the

argument, but that some time later when Hoxsie was not looking, Waters shot

Suiter at close range.

       During trial, Hoxsie’s trial counsel called Waters as a witness. Waters’s

testimony ultimately implicated Hoxsie. In his pretrial statement, Waters seemed

confused and claimed to remember nothing about the night, admitting that he had

been drinking and was “messed up” and “in a daze.” Several of his statements

seemed to implicate himself. At one point, for example, he stated, “I don’t

remember. All of a sudden, all this commotion started. I had a gun in my hand.”

At trial, however, Waters testified that he remained in the truck and did not see

what happened, but that Hoxsie handed him the gun and told him to put it under

the seat.

       After the jury convicted Hoxsie on all charges in the indictment, Hoxsie

appealed to the New Mexico Supreme Court. He alleged that prosecutorial

misconduct deprived him of a fair trial. Specifically, Hoxsie alleged that the

prosecution: (1) asked many repetitive and leading questions, (2) sought to

impeach Hoxsie by reading from an inadmissible transcript, (3) introduced dozens


                                         -4-
of repetitive and gruesome photographs, (4) acted improperly in presenting the

testimony of the victim’s mother, and then allowing her to remain in the

courtroom for the remainder of the trial, (5) noted during cross-examination of

Hoxsie and closing argument that Hoxsie testified after he had heard all the

testimony against him, and (6) committed cumulative error based on the above

alleged misconduct. The New Mexico Supreme Court did not address the first

two claims because Hoxsie did not include them in his docketing statement. The

court, however, rejected Hoxsie’s remaining grounds for relief, including

cumulative error. See State v. Hoxsie, 677 P.2d 620, 622 (N.M. 1984), overruled

on other grounds by Gallegos v. Citizens Ins. Agency, 779 P.2d 99 (N.M. 1989).

      Hoxsie then filed this federal petition for writ of habeas corpus,

challenging his state conviction on the basis of prosecutorial misconduct and

ineffective assistance of counsel. His allegations of prosecutorial misconduct are

the same as those raised in his direct appeal. Hoxsie also contends that he was

denied effective assistance of counsel because his trial counsel: (1) gave an

opening statement that conflicted with Hoxsie’s pretrial statements and his later

trial testimony, (2) called Waters as a witness who provided the only direct

evidence of Hoxsie’s guilt, (3) failed to obtain the testimony of a witness who

heard Waters say that he, not Hoxsie, had killed the deceased, (4) failed to obtain

the testimony of various character witnesses, and (5) failed to introduce other


                                        -5-
evidence tending to exonerate Hoxsie, including evidence that the murder weapon

was found in Waters’s bedroom and that Waters had threatened people with the

murder weapon about a week before the shooting. The district court referred the

case to a magistrate, who recommended that Hoxsie’s petition be dismissed on the

merits. After amending the magistrate’s findings in five respects, the district

court adopted the magistrate’s recommendation and this appeal followed.

                                  DISCUSSION

I.    EXHAUSTION OF STATE REMEDIES

      Before addressing the merits of Hoxsie’s habeas petition, we must consider

whether we should dismiss the petition because Hoxsie has failed to exhaust his

available state remedies. In its answer to Hoxsie’s habeas petition in the district

court, the State conceded that Hoxsie had exhausted all of his claims. On appeal,

the State now contends that absent an affirmance on the merits, the petition

should be dismissed because Hoxsie has failed to exhaust his ineffective

assistance claim in New Mexico state court.

      Generally, a federal court presented with a habeas petition containing both

exhausted and unexhausted claims should dismiss the entire petition without

prejudice. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982).

We need not resolve this issue, however, because we conclude that it is

appropriate to address the merits of a habeas petition notwithstanding the failure


                                        -6-
to exhaust available state remedies where, as here, “the interests of comity and

federalism will be better served by addressing the merits forthwith.” Granberry v.

Greer, 481 U.S. 129, 134 (1987); see Miranda v. Cooper, 967 F.2d 392, 400 (10th

Cir. 1992). The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-132, 110 Stat. 1214, codifies the holding in Granberry by authorizing the

denial of a petition on the merits despite failure to exhaust state remedies. See 28

U.S.C. § 2254(b)(2). B ecause § 2254(b)(2), standing alone, does not contain the

standard for determining when a court should dismiss a petition on the merits instead of

insisting on complete exhaustion, we read § 2254(b)(2) in conjunction with Granberry.

The Supreme Court in Granberry reasoned that “if the court of appeals is convinced

that the petition has no merit, a belated application of the exhaustion rule might

simply require useless litigation in the state courts.” Granberry, 481 U.S. at 133.

As we shall explain, all of Hoxsie’s claims are without merit.

II.   Prosecutorial Misconduct

      Hoxsie first contends that prosecutorial misconduct in his state criminal

trial deprived him of various constitutional rights, including the right to due

process, to remain silent, and to confront witnesses against him. As stated above,

Hoxsie raises several grounds for his claim of prosecutorial misconduct. The

New Mexico Supreme Court did not address the merits of the first two grounds--

asking repetitive and leading questions and reading from an inadmissible



                                           -7-
transcript--in Hoxsie’s direct appeal. See Hoxsie, 677 P.2d at 622. Hoxsie failed

to include these grounds in his docketing statement and, accordingly, the court

ruled that they were procedurally barred. Id. In Coleman v. Thompson, 501 U.S.

722, 750 (1991), the Supreme Court held:

      In all cases in which a state prisoner has defaulted his federal claims
      in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claims is barred unless
      the prisoner can demonstrate cause for the default and actual
      prejudice as a result of the alleged violation of federal law, or
      demonstrate that failure to consider the claims will result in a
      fundamental miscarriage of justice.

In this case, the New Mexico Supreme Court’s dismissal of Hoxsie’s first two

grounds rested on an “independent and adequate” state procedural rule. See Klein

v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995). Further, Hoxsie has failed to

demonstrate either cause and prejudice for his procedural default or that failure to

consider his claims will result in a fundamental miscarriage of justice. Therefore,

Hoxsie may not obtain review of his first two grounds in this proceeding.

      In his third ground, Hoxsie contends that the prosecution introduced

numerous prejudicial photographs of the victim, rendering Hoxsie’s trial

fundamentally unfair. We review Hoxsie’s claim of prosecutorial misconduct

under the standard set forth in Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

See Robison v. Maynard, 829 F.2d 1501, 1509 (10th Cir. 1987). In Donnelly, the

Court held that prosecutorial misconduct in a state court violates a defendant’s


                                        -8-
right to a fair trial only if the prosecutor’s actions “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Donnelly,

416 U.S. at 643. Viewing Hoxsie’s contention in light of this standard, we cannot

conclude that the admission of the photographs denied Hoxsie a fair trial. As the

district court concluded, the photographs were relevant and were admissible for

the purpose of clarifying and illustrating testimony. Thus, the introduction of the

photographs did not so infect Hoxsie’s trial as to deny his right to due process.

      In his fourth ground, Hoxsie contends that the prosecution acted improperly

by permitting Suiter’s mother to testify at trial and to remain in the courtroom

throughout the trial. Hoxsie argues that her testimony and presence in the

courtroom was designed to have an impermissible emotional impact on the jury

and thereby bias the jury’s evaluation of the evidence. As above, we review

claims of this type by determining whether the prosecutor’s actions “so infected

the trial with unfairness as to make the resulting conviction a denial of due

process.” Donnelly, 416 U.S. at 643. Again, we are unable to conclude that the

prosecutor’s conduct was improper under the standard in Donnelly. Although the

mother’s testimony, which ended in an emotional breakdown in grief over the

death of her son, undoubtedly had an effect on the jury, her testimony was

relevant to the identity of the victim. Thus, we cannot fault the prosecutor for

calling the mother as a witness. See Willis v. Kemp, 838 F.2d 1510, 1521 (11th


                                           -9-
Cir. 1988) (finding no prosecutorial misconduct where the victim’s wife “became

too emotional to continue her testimony” because the testimony was relevant to

the identity of the victim). Further, we cannot conclude that her testimony and

presence in the courtroom resulted in a denial of due process. In light of the

strong evidence of Hoxsie’s guilt presented at trial, there is no reasonable

probability that absent the alleged misconduct, “the outcome of the trial would

have been different.” Robison, 829 F.2d at 1509. We therefore conclude that

Hoxsie was not deprived of a fair trial on this ground.

      In his fifth ground, Hoxsie contends that the prosecution impermissibly

encouraged the jury to infer guilt by remarking to the jury that Hoxsie had

tailored his trial testimony after hearing the evidence against him. Specifically,

Hoxsie contends the prosecution’s remarks violated his rights to due process, to

remain silent, and to confront witnesses against him. The following exchange

illustrates the alleged error in the prosecutor’s remarks:

      Q: Now, Mr. Hoxsie, you sat in this courtroom for three days and
      listened to all the testimony, isn’t that correct?
      A: Yes, sir.
      Q: In fact, you’ve listened to your tape recording and the tape recording
      that Mr. Waters gave--in the courtroom and even outside the courtroom?
      A: Yes.
      Q: That includes Mr. Waters’s tape recording [of his post-arrest interview]?
      A: Yes.
      Q: And your own?
      A: [No answer is audible].



                                         - 10 -
      Q: So you knew everything that was going to be said and you’ve heard
      everything that has been said with regard to what occurred on [the evening
      before and the morning of the murder]?

Defense counsel objected to this line of questioning, but the trial court gave no

curative instruction. Following this exchange, the prosecutor continued his cross-

examination with a series of questions establishing that Hoxsie was not claiming

self-defense, which was the theory of the case Hoxsie’s trial counsel set out in his

opening statement. Hoxsie contends that these questions, and similar remarks in

the prosecution’s closing, invited the jury to infer, solely because he exercised his

constitutional rights to be present at trial, to hear witnesses, and to testify, that

Hoxsie had tailored his testimony to fit the State’s case.

      We conclude that the prosecutor’s remarks did not rise to the level of

constitutional error, but were permissible attacks on Hoxsie’s credibility in light

of the inconsistency between Hoxsie’s trial testimony and his defense counsel’s

opening statement. The prosecutor’s questions did not invite the jury to infer

guilt solely because Hoxsie testified last, but because Hoxsie’s trial testimony

contradicted his defense counsel’s opening statement and even his own pretrial

statement to the police. “[I]n a case involving two essentially conflicting stories,

it is reasonable to infer, and to argue, that one side is lying.” United States v.

Lanier, 33 F.3d 639, 659 (6th Cir. 1994), vacated on other grounds, 43 F.2d 1033




                                          - 11 -
(6th Cir. 1995), on reh’g en banc, 73 F.3d 1380 (6th Cir. 1996), cert. granted, 116

S. Ct. 2522 (1996).

      Even if the prosecution’s remarks did infringe upon Hoxsie’s constitutional

rights, the error was harmless in light of the other evidence of Hoxsie’s guilt

presented at trial. We review the district court’s determination of harmless error

de novo. Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995). The standard for

harmless error on collateral attack in a habeas case is whether “an error had

substantial and injurious effect or influence in determining the jury’s verdict.”

Id. at 883 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). In

evaluating a claim of prosecutorial misconduct based on improper remarks made

by the prosecutor, we have stated:

      To view the prosecutor’s statements in context, we look first at the
      strength of the evidence against the defendant and decide whether the
      prosecutor’s statements plausibly “could have tipped the scales in
      favor of the prosecution.” . . . We also ascertain whether curative
      instructions by the trial judge, if given, might have mitigated the
      effect on the jury of the improper statements. . . . When a prosecutor
      responds to an attack made by defense counsel, we evaluate that
      response in light of the defense argument. . . . Ultimately, we “must
      consider the probable effect the prosecutor’s [statements] would have
      on the jury’s ability to judge the evidence fairly.”

Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (citing Hopkinson v.

Shillinger, 866 F.2d 1185, 1210 (10th Cir. 1989)), cert. denied, 115 S. Ct. 2278

(1995). After a thorough review of the record, we are satisfied that the

prosecutor’s remarks did not “tip the scales” in favor of Hoxsie’s guilt. Hoxsie’s

                                        - 12 -
own contradictory testimony, the testimony of Waters, and the demonstrative

evidence offered at trial provide overwhelming evidence of Hoxsie’s guilt. In

Hoxsie’s direct appeal, the New Mexico Supreme Court concluded that “the

record clearly shows that the evidence of guilt is so overwhelming that there is no

reasonable probability that any misconduct which may have occurred contributed

to the convictions.” Hoxsie, 677 P.2d at 623. We agree and, therefore, reject

Hoxsie’s claim that he is entitled to habeas relief on this ground.

      Finally, Hoxsie contends that the cumulative effect of the above instances

of alleged prosecutorial misconduct deprived him of a fair trial. Cumulative-error

analysis applies where there are two or more actual errors. United States v.

Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990). It does not apply, however, to the

cumulative effect of non-errors. Id. Thus, unless the entire trial was so

fundamentally unfair that a defendant’s due process rights were violated, Hoxsie

is not entitled to relief. Id. at 1471 n.8. In this case, Hoxsie has not shown that

the above allegations of misconduct constitute actual error. Further, we are not

persuaded that the record in this case demonstrates a trial “so fundamentally

unfair that due process was denied.” Fero, 39 F.3d at 1475. In sum, we hold that

Hoxsie’s claims of prosecutorial conduct are without merit.




                                         - 13 -
III.   Ineffective Assistance of Counsel




                                     - 14 -
      Hoxsie next contends that the district court erred in rejecting his ineffective

assistance of counsel claim on the merits and in failing to grant him an

evidentiary hearing on the issue. We address each contention in turn.

A.    Merits

      We review a claim of ineffective assistance of counsel de novo. Nickel v.

Hannigan, 97 F.3d 403, 408 (10th Cir. 1996), petition for cert. filed, --U.S.L.W.--

(Dec. 30, 1996) (No. 96-7296). To prevail on his claim, Hoxsie must meet the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First,

Hoxsie must show that his counsel’s performance fell below an objective standard

of reasonableness, id. at 688, and second, that the deficient performance resulted

in prejudice to his defense, id. at 687. To succeed under the first prong, Hoxsie

must overcome a strong presumption that “counsel’s conduct falls within the wide

range of reasonable professional assistance; that is the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)). To succeed under the second prong, Hoxsie must show

“that counsel’s errors were so serious as to deprive [him] of a fair trial, a trial

whose result is reliable.” Id. at 687. This is shown by demonstrating that “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694.


                                         - 15 -
      We conclude that none of the grounds on which Hoxsie claims ineffective

assistance of counsel rise to the level of a Sixth Amendment violation. In his first

ground, Hoxsie contends that his counsel was ineffective because he gave an

opening statement that conflicted with Hoxsie’s later testimony at trial. On this

point, Hoxsie fails to overcome the presumption that the opening statement

“might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Indeed,

there is evidence that Hoxsie aided in the scripting of the opening statement and

later, after hearing the state’s case, changed his testimony. Accordingly, Hoxsie

has failed to show that his counsel’s performance was constitutionally ineffective.

      In his second ground, Hoxsie contends counsel was ineffective because he

decided to call Waters as a witness. Hoxsie argues that a reasonably performing

defense counsel would have realized that Water’s testimony would be harmful to

the defense. Hoxsie bases his claim on three allegations: (1) his defense counsel

knew that Waters and his attorney met with the prosecution the weekend before

the trial, (2) Hoxsie told his defense counsel that he had learned from a jailer that

Waters had struck a deal with prosecutors, and (3) Waters’s trial did not proceed

first as originally scheduled. None of these allegations are disputed by defense

counsel.

      “For counsel’s [decision] to rise to the level of constitutional

ineffectiveness, the decision . . . must have been ‘completely unreasonable, not


                                         - 16 -
merely wrong, so that it bears no relationship to a possible defense strategy.’”

Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) (quoting United States

v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983), cert. denied, 116 S. Ct. 1881

(1996)). The reasonableness of counsel’s challenged conduct must be assessed at

the time of the conduct. Dever v. Kansas State Penitentiary, 36 F.3d 1536, 1537

(10th Cir. 1994). Neither hindsight nor success is the measure. Id. Moreover,

“the decision of what witnesses to call is a tactical one within the trial counsel’s

discretion.” Minner v. Kerby, 30 F.3d 1311, 1317 (10th Cir. 1994). Mindful of

these principles, we conclude, as the district court did, that the decision to call

Waters was a tactical decision, well within the range of reasonable attorney

performance. When Hoxsie’s defense counsel decided to call Waters as a

witness, Waters had not affirmatively named Hoxsie as the shooter. In fact,

Waters told the police in his pretrial statement that, due to his level of

intoxication, he could not remember what occurred the morning of the murder.

Hoxsie’s defense counsel clearly thought, based on Waters pretrial statements,

that he would do poorly on the stand, perhaps even admitting to the shooting, and

that the jury might conclude that Hoxsie was innocent. Thus, counsel’s decision

to call Waters does not constitute ineffective assistance of counsel.




                                         - 17 -
      As for Hoxsie’s remaining grounds (3), (4) and (5), we have carefully

reviewed the record and have determined that, for substantially the reasons set

forth in the magistrate’s opinion, all are without merit.

B.    Evidentiary Hearing

      Finally, Hoxsie contends that the district court erred in denying him an

evidentiary hearing on his ineffective assistance of counsel claim. “To be entitled

to a hearing on this claim, [Hoxsie] must have alleged facts which, if proven,

would establish he received ineffective assistance of counsel.” Lasiter v.

Thomas, 89 F.3d 699, 703 (10th Cir.), cert. denied, 117 S. Ct. 493 (1996). As

shown above, Hoxsie has failed to make a credible allegation that his “counsel’s

performance was deficient.” Strickland, 466 U.S. at 687. Further, the evidence

that Hoxsie seeks to introduce “must have been inadequately developed in state

court for reasons not attributable to petitioner’s inexcusable neglect” or

“deliberate bypass.” Dever, 36 F.3d at 1536. Here, for reasons unknown, Hoxsie

deliberately bypassed his opportunity to seek an evidentiary hearing on his

ineffective assistance claim in a state habeas corpus proceeding. Thus, we

conclude that the district court did not err in declining to hold an evidentiary

hearing. AFFIRMED.




                                         - 18 -
