                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    May 12, 2008
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT
                                                                       Clerk of Court


    GLENN DALE PEARL,

                Petitioner-Appellant,

    v.                                                   No. 07-7024
                                                (D.C. No. 6:04-CV-00534-FHS)
    JUSTIN JONES, Director, *                            (E.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT **


Before TACHA, EBEL, and MURPHY, Circuit Judges.


         Glenn Dale Pearl appeals the district court’s denial of his 28 U.S.C. § 2254

application for a writ of habeas corpus. This court previously granted Mr. Pearl a

certificate of appealability (COA) on one issue: “whether his trial counsel was




*
       Pursuant to Fed. R. App. P. 43(c)(2), Justin Jones, the Director of the
Oklahoma Department of Corrections, is substituted for Ron Ward as appellee in
this action. See Dulworth v. Jones, 496 F.3d 1133, 1133 n.* (10th Cir. 2007).
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
ineffective.” Order at 1. Our jurisdiction arises under 28 U.S.C. §§ 1291 and

2253(a), and we affirm.

                                 BACKGROUND

       In February 2003, an Oklahoma jury found Mr. Pearl guilty of first degree

manslaughter. He was sentenced to twenty-five years’ imprisonment. Mr. Pearl

appealed his conviction and sentence (with different counsel representing him),

advancing several grounds for relief; among them, that trial counsel’s failure to

call him to the stand to support his claim of self-defense constituted ineffective

assistance in violation of the Sixth Amendment “because Mr. Pearl was the only

witness who could testify to his subjective belief of the danger Mr. Fulbright

posed and of the escalation of the fight which led Mr. Pearl to use deadly force.”

R. Vol. 1, Doc. 1, App. 6 at 11-12. In May 2004, the Oklahoma Court of

Criminal Appeals (OCCA) affirmed Mr. Pearl’s conviction and sentence, stating,

in part:

       The defendant does not have to testify in order to raise the defense of
       self-defense. A defendant has the ability to raise self-defense
       through cross-examination of State witnesses. . . .
              In the present case, self-defense was adequately raised through
       evidence developed in cross-examination of State witnesses
       suggesting the victim had been the aggressor. 1 Any failure by


1
      Specifically, the OCCA observed: “[W]e have Rosemary Johnson’s
testimony concerning the events immediately prior to the fatal altercation, Dennis
Pearl’s testimony regarding Appellant’s statement the victim hit him and was
choking him, so he stabbed the victim, and Appellant’s written statement
                                                                      (continued...)

                                         -2-
      counsel to put Appellant on the stand was not ineffective assistance
      of counsel as the defense of self-defense was sufficiently put before
      the jury in other evidence. Appellant has not shown his testimony
      would have been more advantageous than prejudicial. Therefore, he
      has failed to meet his burden of showing a reasonable probability
      that, but for any error by counsel, the result of his trial would have
      been different.

Id. Doc. 12, Ex. C at 2-3 (citations and footnote omitted).

      Proceeding pro se, Mr. Pearl next filed an application for post-conviction

relief and a motion for an evidentiary hearing in state court. In the application,

Mr. Pearl re-urged the ineffective-assistance claim raised on direct appeal and

asserted that he had told trial counsel that he wanted to testify but counsel

“refused to let [him testify].” Id. Doc. 1, App. 3 at 3. In September 2004, the

state court, without holding an evidentiary hearing, denied Mr. Pearl’s application

for post-conviction relief, stating: “[t]he single proposition urged . . . was raised

and decided in his direct appeal, and he is barred from re-urging it here.” Id.

App. 4 at 2 (citing Woodruff v. State, 910 P.2d 348, [350] (Okla. Crim. App.




1
 (...continued)
concerning the altercation itself. Therefore, Appellant’s testimony at trial was not
required.” R. Vol. 1, Doc. 12, Ex. C at 2, n.1.

                                          -3-
1996)). 2 Mr. Pearl did not appeal to the OCCA the denial of post-conviction

relief.

          In December 2004, Mr. Pearl filed a pro se § 2254 application for a writ of

habeas corpus in federal district court. In it, he re-urged the ineffective-

assistance claim raised on direct appeal and asserted that trial counsel did “not

allow [him] to testify, 3 or advise and consult that it was solely [his] right whether

to testify or remain silent.” Id. Doc. 1 at 13. Mr. Pearl also took issue with the

state court’s denial of post-conviction relief to the extent that it implicitly denied

his motion for an evidentiary hearing.

          Respondent filed a motion to dismiss for failure to exhaust state court

remedies, arguing that although Mr. Pearl challenged trial counsel’s performance

on direct appeal, he did not do so “on the same ground[s] as set forth in [his]

post-conviction application and as asserted in this habeas Petition.” Id. Doc. 6 at

4. Mr. Pearl responded, stating that the only claim before the habeas court was

his exhausted ineffective-assistance-of-counsel claim raised on direct appeal:

trial counsel’s “fail[ure] to call [him] to the stand in support of self-defense.” Id.


2
      Mr. Pearl concedes in his counseled brief to this court that the “specific
claim” that trial counsel “prevented” him from testifying, Aplt. Br. at 2, which is
an ineffecive-assistance-of-counsel claim, Cannon v. Mullin, 383 F.3d 1152,
1170, 1171 (10th Cir. 2004), “was not [raised] on direct appeal,” Aplt. Br. at 2.
Nor was the issue raised to the OCCA in an appeal from the denial of his
application for post-conviction relief.
3
          This claim was not raised on direct appeal. See supra note 2.

                                            -4-
Doc. 7 at 5; see also id. at 7 (“It is clear the sole question [is] ‘if’ self-defense

was warranted . . . . The fact finders never heard my viewpoint to determine if I

was faced with imminent danger of death or great bodily harm BEFORE deadly

force had been resorted to . . . .”).

       The district court overruled respondent’s motion to dismiss relying on

Mr. Pearl’s clarification that the only claim at issue was his exhausted claim of

ineffective assistance. Thus, the district court directed respondent to file an

answer addressing the exhausted claim. Mr. Pearl replied to respondent’s answer,

imploring the district court to hold an evidentiary hearing and reintroducing his

previously withdrawn arguments. See, e.g., id. Doc. 16 at 2 (stating that trial

counsel would not let him take the stand despite his expressed desire to do so); id.

at 10 (suggesting that he did not “knowingly and voluntarily waive[]” his right to

testify due to a “dereliction of duty” on the part of trial counsel).

       The district court granted Mr. Pearl’s request for an evidentiary hearing and

appointed counsel. After the evidentiary hearing, the district court denied relief

and dismissed the action. Pearl v. Ward, No. CIV 04-534-FHS, 2007 WL

869699, at *1-3 (E.D. Okla. Mar. 20, 2007). In denying relief, the court first

detailed the hearing testimony. It then explained that even though the parties

during the evidentiary hearing

       addressed . . . whether Petitioner voluntarily waived his right to
       testify and whether his trial counsel was ineffective. . . . the sole
       issue before the court according to Petitioner’s own admission is

                                            -5-
      whether his Sixth Amendment right to effective assistance of counsel
      was denied [by trial counsel’s failure to call him to the stand in
      support of his claim of self-defense]. Accordingly, this will be the
      only issue addressed by this court.

Id. at *2 (emphasis added). Applying Strickland v. Washington, 466 U.S. 668,

687 (1984), the district court found trial counsel’s recommendation that Mr. Pearl

not take the stand to establish self-defense was not deficient, noting that

      In Oklahoma, there is no requirement that a defendant take the stand
      in order to pursue a claim of self defense. Williams v. State, 915
      P.2d 371, 375-376 (Okla. Crim. App. 1996). . . . [S]tate of mind is
      not the law of self-defense. A defendant can establish a valid self
      defense claim through circumstantial evidence. Id. It is purely a
      matter of trial strategy as to whether the defendant in a criminal trial
      will testify. Camron v. State, 829 P.2d 47, 55-56 (Okla. Crim. App.
      1992).

Pearl, 2007 WL 869699, at *2. Next, the district found that even if Mr. Pearl

could demonstrate deficient performance, he could not demonstrate that his

defense was prejudiced by deficient performance. Id. (“There is absolutely no

evidence to indicate the outcome of the proceeding would have been different had

Petitioner testified.”); see Strickland, 466 U.S. at 687 (observing that in order to

be entitled to relief, a petitioner must prove both that his counsel’s performance

was deficient and that the deficient performance prejudiced his defense).

                       THE ISSUE BEFORE THE COURT

      As a preliminary matter, we note that Mr. Pearl, who is represented by

counsel, does not specifically challenge the federal district court’s limited

articulation of the issue before it. Yet, he argues on appeal that trial counsel’s

                                          -6-
performance was deficient because counsel failed to inform him that the decision

whether to testify was solely his. This assertion was not before the district court.

The only claim before it, by Mr. Pearl’s “own admission,” was the claim he raised

on direct appeal to the OCCA, Pearl, 2007 WL 869699, at *2, namely, that trial

counsel’s failure to call him to the stand to support his claim of self-defense

constituted ineffective assistance in violation of the Sixth Amendment “because

[he] was the only witness who could testify to his subjective belief of the danger

Mr. Fulbright posed and of the escalation of the fight which led Mr. Pearl to use

deadly force.” R. Vol. 1, Doc. 1, App. 6 at 11-12. The district court did not

address the failure-to-inform argument and neither will we.

                            STANDARD OF REVIEW

      “We have held that after a federal-court evidentiary hearing, we no longer

defer to the state court’s decision.” Torres v. Lytle, 461 F.3d 1303, 1312

(10th Cir. 2006). That is, after such a hearing, we do not apply the deferential

standard contained in the Antiterrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254(d), “even if the state court resolved the claim on the

merits,” Young v. Sirmons, 486 F.3d 655, 663 (10th Cir. 2007), cert. denied, 128

S. Ct. 1269 (2008).

      After all, when new evidence is produced during federal habeas
      proceedings, what the state court decided (the merits of a legal issue
      based on the factual record before it) is different from what the
      federal court must decide (the merits of the same legal issue but
      based on a materially different factual record).

                                         -7-
Torres, 461 F.3d at 1312. “In these circumstances, this court accepts the district

court’s factual findings unless they are clearly erroneous and reviews de novo

whether counsel’s performance was legally deficient and whether the deficiencies

prejudiced the defendant.” Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir. 2003)

(en banc).

                                    DISCUSSION

      We now address whether the district court properly determined that trial

counsel’s failure to call Mr. Pearl to the stand to support his claim of self-defense

constituted ineffective assistance in violation of the Sixth Amendment. A claim

by a habeas petitioner “that counsel’s assistance was so defective as to require

reversal of a conviction . . . has two components.” Strickland, 466 U.S. at 687.

“To be entitled to relief, a petitioner must prove both that his counsel’s

performance was deficient and that the deficient performance prejudiced his

defense.” Bryan, 335 F.3d at 1216. To carry his burden of demonstrating

deficient performance, a petitioner must show “that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland, 466 U.S. 687. To carry his burden of

demonstrating prejudice, a petitioner must show “that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id.




                                          -8-
      During the federal evidentiary hearing in February 2007, Mr. Pearl testified

about what he would have said on the stand in February 2003. Specifically, he

stated that he did not want to fight Mr. Fulbright, and he therefore held the knife

out in front of himself to keep Mr. Fulbright at a distance. He stated that

Mr. Fulbright “told me that he was going to kill me,” and explained that he took

Mr. Fulbright’s threat seriously. R. Supp. Vol. 1 at 18. He also testified that the

statement he gave police in 2002 “didn’t have a lot of the stuff” he was testifying

to because he was nervous when he gave the statement. Id. at 25.

      In this case, we need not decide whether trial counsel’s performance was

deficient because Mr. Pearl fails to show that he suffered prejudice as a result of

counsel’s failure to call him to the stand in support of self-defense. See

Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.”). That is, having carefully

reviewed the record, the briefs, and the applicable law in light of the above-

mentioned standards, we agree with the district court’s conclusion that

      most if not all of the information Petitioner would have testified to at
      trial was provided by a prosecution witness and his own statement to
      the police after the stabbing. Further, the prosecutor testified that he
      would have introduced evidence about Petitioner’s previous
      convictions. He also testified he would have impeached him about
      inconsistencies in his statements had he taken the stand. Thus, there
      is no ‘reasonable probability’ the results of the proceeding would
      have been different.


                                         -9-
Pearl, 2007 WL 869699, at *2.

                                CONCLUSION

      The judgment of the district court is AFFIRMED.

                                                Entered for the Court



                                                Michael R. Murphy
                                                Circuit Judge




                                     -10-
