                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 STEVEN CLAY MARSHALL,

       Petitioner - Appellant,
 v.                                                      No. 04-5134
                                                 (D.C. No. 01-CV-603-H (M))
 GARY GIBSON, Warden, Oklahoma                          (N.D. Okla.)
 State Penitentiary,

       Respondent - Appellee.


                                      ORDER


Before EBEL, McKAY and HENRY, Circuit Judges.


      Steven Clay Marshall (“Petitioner”), a state prisoner appearing pro se,

seeks a certificate of appealability (“COA”) to challenge the district court’s denial

of his Petition for Writ of Habeas Corpus, which was brought pursuant to 28

U.S.C. § 2254 (2000). For the reasons stated below, we DENY COA and

DISMISS the appeal.

                                 BACKGROUND

      Petitioner was charged in Oklahoma state court with abuse of a minor child,

to which he pled not guilty. (Tr. v. I, at 5.) At trial, Petitioner maintained that

the injuries to the child occurred accidentally. (Id. at 9-10.) During the defense

case-in-chief, Petitioner called Janetta Williams, his cousin, as a witness. (Id. v.
2, at 84.) Williams testified, inter alia, that she was comfortable leaving her own

daughter in Petitioner’s care and that she had never in the past had any concerns

about Petitioner’s ability to care for her children. (Id. at 92-93.) On cross

examination, the prosecutor attempted to get Williams to change her opinion of

Petitioner by bringing up what were alleged to be several of Petitioner’s prior

convictions from Illinois. (Id. at 96-97.) Williams, however, did not change her

position. (Id.) On re-direct examination, Petitioner’s lawyer established that the

prior convictions actually involved another individual with a different name,

different age, and different race. 1 (Id. at 97-100.) On re-cross examination, the

prosecutor pointed out that Petitioner was from Illinois and that the birth date on

some of the documents matched Petitioner’s birth date. (Id. at 101-02.)

      The jury found Petitioner guilty and recommended a sentence of thirty-five

years’ imprisonment, which the trial court imposed. (R.O.A. doc 6, at 2.) On

direct appeal, Petitioner challenged, inter alia, the state’s cross examination of

Williams as “exceed[ing] the permissible bounds of impeachment with evidence

of prior bad acts.” Although at trial the state appeared to contend that the former

convictions were authentic, the prosecutor conceded on appeal that the prior



      1
       According to the trial transcripts, the prior convictions involved one
Steven D. Marshall, a white male who was 30 years old. (Tr. v. II at 97-100.)
Petitioner, a black male, is named Steven C. Marshall and was 28 years old at the
time of trial. (Id. at 100.)

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convictions reflected a defendant with a “different name, different birthdate,

different age, and different race.” (R.O.A. doc. 3, ex. B, at 4.) The Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s conviction and

sentence, holding that admission of the prior convictions was harmless error.

(Id., ex. C, at 2.)

      Petitioner timely filed a petition for habeas corpus relief in district court,

pursuant to 28 U.S.C. § 2254, in which he argued that the admission of the prior

convictions denied him due process under the Fourteenth Amendment. (Id., doc.

1.) After finding that Petitioner had adequately exhausted his state court

remedies, the district court held that the erroneous admission of the prior

convictions, when viewed in light of other evidence presented at trial, the jury

instructions, and defense counsel’s re-direct examination, did not rise to the level

of a due process violation. (Id., doc. 6, at 5-6.) Accordingly, the court

dismissed the petition. (Id.)

                                   DISCUSSION

      Under 28 U.S.C. § 2253(c)(1), this court lacks jurisdiction to consider the

merits of Defendant’s appeal unless he first obtains a COA. In the instant case,

Defendant seeks a COA from this court because the district court denied his

request to appeal its decision. See Fed. R. App. P. 22(b)(1); (R.O.A. doc. 11, at

2.). To prevail on his COA request, Defendant must make “a substantial showing


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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This is

accomplished by establishing that “reasonable jurists could debate whether (or,

for that matter, agree that) 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, 483-484 (2000) (quotations

omitted).

      We hold that Defendant has failed to meet the Slack standard. Under 28

U.S.C. § 2254(d), Petitioner may only obtain federal habeas relief if the state

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.”

      On habeas review, we will not disturb the state court’s evidentiary rulings

on Due Process grounds unless the court’s error was “so unduly prejudicial that it

renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825

(1991); accord Fox v. Ward, 200 F.3d 1286, 1296-97 (10th Cir. 2000).

      Petitioner simply cannot meet this burden. Although the mention of prior

convictions that did not belong to Petitioner was no doubt improper, we are

mindful that the discrepancies were quickly drawn to the jury’s attention by

Petitioner’s counsel. Furthermore, the prosecutor was unsuccessful in changing


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the testimony of the witness. We are unable to say that the admission of the

convictions rendered the trial so “unduly prejudicial” as to constitute a violation

of due process. Payne, 501 U.S. at 825. Accordingly, Petitioner cannot

demonstrate that the OCCA’s decision to affirm his conviction was “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).

      In conclusion, we remain unconvinced that reasonable jurists could debate

that Defendant’s § 2254 motion should have been resolved differently. See Slack,

529 U.S. 483-44. Accordingly, we DENY COA and DISMISS the appeal for

substantially the reasons stated below.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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