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

                                      TENTH CIRCUIT                     February 27, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
MOZELL PAUL GOUDEAU
            Petitioner – Appellant,                         No. 14-6215
                                                    (D.C. No. 5:13-CV-00240-M)
v.                                                          (W.D. Okla.)
JANET DOWLING, Warden

           Respondent – Appellee.


             ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



         Mozell Goudeau is a prisoner currently in the custody of the Oklahoma

Department of Corrections. Goudeau was tried and convicted in state court on charges of

Robbery with a Dangerous Weapon after Former Conviction of Two or More Felonies

and received a life sentence. On direct appeal, the Oklahoma Court of Criminal Appeals

(OCCA) affirmed Goudeau’s conviction and sentence.

     Goudeau then initiated this § 2254 action in the Western District of Oklahoma. A

report and recommendation by the magistrate judge found no actionable deficiencies in

the OCCA’s treatment of the eight grounds for relief urged by Goudeau. Thus, the

magistrate recommended denying habeas relief on all eight grounds. After reviewing de

     *
      This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
novo the magistrate’s report and recommendation, the district court adopted the

magistrate’s report in its entirety. Under the Antiterrorism and Effective Death Penalty

Act of 1996, the district court also denied Goudeau a certificate of appealability (COA).

    Goudeau’s brief reiterates the same eight arguments he has previously raised in his

direct appeal to the OCCA as well as in his motion before the district court. Stated

succinctly, Goudeau’s arguments are: (1) the admission of inadmissible hearsay denied

him his right to a fair trial and to cross-examine witnesses against him; (2) Charles

Mackey’s in-court identification of him was unreliable as it was the product of a highly

suggestive environment; (3) evidentiary harpoons deprived him of a fair trial; (4) the

state’s introduction of evidence of a suspended sentence on one of his previous

convictions constituted plain error; (5) he was prejudiced by ineffective assistance of

counsel; (6) prosecutorial misconduct constituted fundamental error and deprived him of

a fair trial; (7) his life sentence is excessive; and (8) the cumulative effect of errors

deprived him of a fair trial. For the reasons stated herein, we deny Goudeau’s application

for a certificate of appealability and dismiss Goudeau's appeal


    I.     Factual Background

    At Goudeau’s trial, Charles Mackey testified about the robbery of his home in

Chickasha, Oklahoma. Mackey stated that on July 24, 2009, an individual (whom

Mackey later identified as Goudeau) put a hand over Mackey’s mouth, placed a knife to

his throat, and told him he would cut him if Mackey made any noise. The man then tied

Mackey’s hands in front of his body and took items from Mackey’s desk. The man made

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no effort to disguise his appearance, and Mackey testified he would never forget

Goudeau’s face. After Goudeau left the room, Mackey heard him take some additional

possessions from the back bedroom where Mackey’s son Charles had been staying.

Goudeau then left through the front door.

    Three additional witnesses offered critical testimony at Goudeau’s trial. The first was

Aurelia Chaney, who worked at the furniture store across from Mackey’s home. She

testified that she saw unusual activity at Mackey’s house while she was taking a break

outside. Specifically, she noticed a pickup truck parked outside the house with one person

inside it. She then saw an individual leave Mackey’s house with a laundry basket filled

with items, place the basket in the bed of the truck, and climb into the truck bed. Once the

individual was in the truck bed, the truck drove away.

    The second critical witness was Harrison Hodge. Hodge testified that Goudeau came

to his house a few days after the incident and bragged about robbing an “old man” and

getting away with it. Hodge also testified that Goudeau told him he planned on next

robbing an old woman who he believed had a safe in her residence.

    The final important witness was police officer Jeremy Alexander. Alexander testified

that on July 26, 2009, he found a truck matching the description of the truck parked in

Mackey’s driveway on the day of the robbery. The three individuals in the truck identified

themselves as Shaun Daugherty, the truck’s owner; his wife, Winter Daugherty; and a

passenger named Keiston Price. When questioned about the robbery, Alexander testified

that Price told him that a person named “Mo” and a person named “Ducky” had

borrowed the truck for several hours on July 24. Because Shaun Daugherty did not have a

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valid driver’s license, he was arrested, the truck was impounded, and officers performed

an inventory search. Among other items the officers found a piece of rope, the

composition of which was consistent with the rope used to bind Mackey’s hands together.


    II.    The COA

    A COA acts as a jurisdictional prerequisite to our consideration of a state prisoner’s

appeal from the denial of his habeas petition by the district court. Miller-El v. Cockrell,

537 U.S. 322, 335–36 (2003). Until a COA is issued, we lack jurisdiction to rule on the

merits of such an appeal. Id. at 336. To obtain a COA, a plaintiff must make a substantial

showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Where, as

here, a district court has rejected the constitutional claims on the merits, a plaintiff can

only obtain a COA by “showing 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 proceed further.’” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).

    Goudeau has not made an adequate showing here. His argument before us merely

restates the eight issues he has previously raised both before the OCCA in his direct

appeal and before the district court in his petition for a writ of habeas corpus. Both the

OCCA and the magistrate judge thoroughly considered and disposed of these arguments.

Having carefully reviewed Goudeau’s brief, the record on appeal, the OCCA’s decision,

and the magistrate’s report, we can find no issue that meets our standard for the grant of a

certificate of appealability. While we therefore lack jurisdiction to reach the merits of this

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appeal, we provide a brief review of the issues to illustrate our bases for denying

Goudeau a COA.

           a. Inadmissible Hearsay

       Goudeau’s arguments concerning inadmissible hearsay form his principal

contention before us. As noted above, Jeremy Alexander testified at Goudeau’s trial

regarding his conversation with Shaun Daugherty, Winter Daugherty, and Keiston Price.

These statements were initially properly admitted for a nonhearsay purpose, but the trial

court later improperly allowed the prosecution to misuse them by arguing that they

proved Goudeau’s possession of the truck on the day of the robbery. As Goudeau had no

opportunity to cross-examine these witnesses, the OCCA found that the use of these

extrajudicial statements as testimonial evidence violated Goudeau’s right to confrontation

under the Sixth Amendment. Given the strength of the state’s case and the other witnesses

against Goudeau, however, the OCCA found the improper admission of this testimony

harmless beyond a reasonable doubt. The magistrate reviewed this finding de novo,

properly considered whether the error had a “substantial injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and

reached the conclusion that it had no such effect.

        Goudeau has provided no basis for a reasonable jurist to reach a contrary

determination. Even absent the statements at issue, the government had a rock-solid

eyewitness who intently observed Goudeau as he committed the crime and subsequently

identified him as the perpetrator. The government also had another witness who testified

that Goudeau admitted to committing a crime remarkably similar to the one at issue here.

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We can perceive no reason why this issue would warrant further discussion before this

court.

           b. Mackey’s In-court Identification

    As to Mackey’s in-court identification of Goudeau, Goudeau has again provided no

reason for us to question the identification or to believe that a reasonable jurist could vary

from the OCCA’s conclusion. Ordinarily, we consider whether a courtroom identification

was tainted by a pre-trial confrontation by considering: (1) the prior opportunity of the

witness to observe the defendant during the criminal act; (2) the degree of attention of the

witness; (3) the accuracy of the witness’s prior identification; (4) the witness’s level of

certainty; and (5) the time between the crime and the confrontation. Manson v.

Brathwaite, 432 U.S. 98, 114–116 (1977). Goudeau does not seem to contest any of these

five factors, instead simply making the conclusory assertion that Mackey’s identification

was tainted. Mackey had a more than adequate opportunity to see Goudeau while he

committed the crime, and was absolutely certain in his identification of Goudeau as the

perpetrator at trial. We can see no grounds for granting a COA on this claim.

           c. Evidentiary Harpoons and Evidence of a Prior Suspended Sentence

    We also must deny Goudeau’s claims for a COA based on evidentiary harpoons and

admission of evidence of a prior suspended sentence. Both of these challenges are to

state-court evidentiary rulings, and thus are based on state law. As a federal habeas court,

we lack authority to review a state court’s interpretation or application of its own state

laws unless the rulings “rendered the trial so fundamentally unfair that a denial of

constitutional rights [resulted].” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)

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(internal quotation marks omitted). The OCCA did not believe that the pieces of

testimony identified by Goudeau should be considered “evidentiary harpoons” under

Oklahoma law, and Goudeau has not demonstrated how this ruling rendered his trial

fundamentally unfair.

    As to the admission of evidence of his prior suspended sentence, this evidence was

presented at the sentencing phase of Goudeau’s trial. Just as with evidentiary issues at

trial, Goudeau must demonstrate to us that the admission of this evidence denied him a

fundamentally fair sentencing procedure. Hooks v. Workman, 689 F.3d 1148, 1180 (10th

Cir. 2012). While the OCCA determined that this evidence was improperly admitted, it

found this error harmless. We can see no basis for a reasonable jurist to disagree. While

evidence of this suspended sentence was improperly admitted at sentencing, evidence of

two other felonies was unquestionably properly admitted. As Goudeau’s sentencing range

was based on “two or more felonies,” it is impossible for him to claim the improper

admission of this third felony rendered his sentencing fundamentally unfair.

           d. Ineffective Assistance of Counsel

    Goudeau’s claims of ineffective assistance of counsel also fail based on the OCCA’s

application of Oklahoma state law. Goudeau’s entire basis for this claim is that his trial

counsel should have objected at trial to the introduction of evidence that the OCCA

determined was properly admitted under state law. As the evidence was properly

admitted, no reasonable jurist could find deficient Goudeau’s trial counsel’s failure to

object to its admission.

           e. Prosecutorial Misconduct

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      Goudeau believes his trial was infected with prosecutorial misconduct.

  Specifically, he contends that in his opening statement the prosecutor invoked

  sympathy for the victim by stating that the items stolen belonging to Mackey’s son

  Charles included pain medication, and that Charles needed the medication because he

  had been injured serving in Afghanistan. Goudeau also suggests the prosecutor’s

  closing statement invoked societal alarm by stating that people like Goudeau chose

  elderly victims because it made it easier to successfully complete the crime. While

  prosecutorial misconduct can warrant habeas relief, the standard for granting such

  relief is particularly high when the misconduct is not alleged to have denied the

  defendant the benefit of a specific provision of the Bill of Rights, or to have “so

  prejudiced a specific right . . . as to amount to a denial of that right.” Donnelly v.

  DeChristoforo, 416 U.S. 637, 643 (1974). The prosecutor’s comments here cannot be

  said to have done either, and do not even seem improper. This claim does not warrant

  the granting of a COA.

           f. Life Sentence

    Goudeau also contests the imposition of a life sentence for his crime. Goudeau’s

sentence was within the range set by state law, and ordinarily habeas review

“ends once [the court] determine[s] the sentence is within the limitation set by statute.”

Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). There is no reason why a review

of Goudeau’s sentence should proceed beyond this determination.

           g. Cumulative Error



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    Goudeau’s final contention is that the cumulative effect of trial errors deprived him of

a fair trial. Cumulative error exists when the “cumulative effect of two or more

individually harmless errors has the potential to prejudice the defendant to the same

extent as a single reversible error.” Duckett v. Mullin, 306 F.3d at 992 (quoting United

State v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). Goudeau here seeks to aggregate a

harmless error of state law (the admission of his prior suspended sentence at sentencing)

and a harmless error of constitutional law (the admission of testimonial hearsay). We

agree with the magistrate that there is no way that these errors, even in the aggregate,

denied Goudeau a fundamentally fair trial. A COA need not issue on these grounds.


    III.   Conclusion

    For the reasons stated herein, we DENY Goudeau's application for a certificate of

appealability and DISMISS Goudeau's appeal.


                                          ENTERED FOR THE COURT


                                          Gregory A. Phillips
                                          Circuit Judge




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