                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 8, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 TREVOR MITCHELL,

          Petitioner - Appellant,
                                                        No. 10-7028
 v.                                         (D.C. No. 06-CV-00503-RAW-KEW)
                                                        (E.D. Okla.)
 JUSTIN JONES, Director of the
 Oklahoma Department of Corrections,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges. **


      Petitioner-Appellant Trevor Mitchell, an Oklahoma state inmate

represented by counsel, appeals the district court’s denial of his application for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court rejected

Mr. Mitchell’s habeas petition on the merits, but granted a certificate of

appealability (“COA”) on the issue of whether the prosecution’s withholding of a

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
videotaped interview of a co-defendant violated Mr. Mitchell’s due process rights

under Brady v. Maryland, 373 U.S. 83 (1963). Thus, we must determine whether

the Oklahoma courts’ denial of Mr. Mitchell’s Brady claim was (1) contrary to or

an unreasonable application of federal law made clear by the United States

Supreme Court or (2) based on an unreasonable determination of the facts in light

of the evidence. 28 U.S.C. § 2254(d). Our jurisdiction arises under 28 U.S.C.

§ 1291 and we affirm.



                                   Background.

      The parties are familiar with the facts and we need not repeat them here.

See Mitchell v. Jones, 2009 WL 6082847, at *1-4 (E.D. Okla. Dec. 14, 2009).

Suffice it to say that in September 1999 Mr. Mitchell was convicted in state court

of first degree burglary (count 1), assault and battery with a dangerous weapon

(count 2), shooting with intent to kill (count 3), and conspiracy to commit a

felony (count 4). 1 R. 20. Mr. Mitchell sought state post-conviction relief,

asserting that the prosecution withheld exculpatory evidence in violation of Brady

v. Maryland. Id. The state district court denied Mr. Mitchell’s Brady claims, and

the OCCA affirmed. Id. at 20-23, 24-30. The state concedes that Mr. Mitchell

has exhausted his state remedies. Mitchell, 2009 WL 6082847, at *1.

      In November 2006, Mr. Mitchell filed a federal habeas petition. 1 R. at 7;

see 28 U.S.C. § 2254. The essence of the petition is that the prosecution withheld

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potentially exculpatory evidence in violation of Brady v. Maryland. Id. at 10-11.

The evidence consists of a videotape and a report indicating that co-defendant

James Strickland failed a polygraph exam and made several remarks that could be

interpreted as inconsistent with his trial testimony. Id.; see also id. at 143, 166-

67 (transcript of the videotape). Specifically, in the videotape Mr. Strickland first

mentions that he heard two shots, but immediately corrects himself and says he

heard three shots—two while inside the house, and one while outside. 1 R. 166-

67. At trial, Mr. Strickland testified that he heard three shots. State Ct.

Pleadings, Vol. 2 at 211-213.

      The magistrate judge recommended that the habeas petition be granted in

part, because Mr. Strickland’s testimony was the only evidence of Mr. Mitchell’s

intent to kill the victim. 1 See Mitchell, 2009 WL 6082847, at *9. However, the

magistrate judge concluded that the video was immaterial to Mr. Mitchell’s

identity as the shooter, given the minor discrepancy between the taped and trial

      1
          On appeal, Mr. Mitchell seeks a COA for other counts of conviction
(counts 1, 2 and 4), not just his conviction for shooting with intent to kill (count
3). See Aplt. Br. at 15, 18. However, we agree with the magistrate judge and
district court that the habeas petition challenged only his conviction for count 3.
See Mitchell, 2009 WL 6082847, at *1 n.1; Mitchell v. Jones, 2010 WL 1141358,
at *1 (E.D. Okla. Mar. 22, 2010). The alleged discrepancies between the
videotape and Mr. Strickland’s testimony have nothing to do with counts 1, 2, and
4, and in any event the tape is clearly immaterial to those counts given the
prosecution’s overwhelming supporting forensic evidence. See Mitchell, 2010
WL 1141358, at *1; 1 R. 23 (Oklahoma district court noting the “very persuasive
forensic evidence” and “overwhelming” evidence of guilt on counts 1, 2, and 4).
We decline Mr. Mitchell’s request to expand the COA to all four counts of
conviction. Aplt. Br. at 1, 15-18.

                                          -3-
transcripts and other credible testimony to that effect. Id. at *8.

      The district court affirmed in part and reversed in part. See Mitchell, 2010

WL 1141358, at *2 (E.D. Okla. March 22, 2010). The court agreed that the video

was immaterial to Mr. Mitchell’s identity as the shooter. Id. However, it

concluded that the video was also immaterial to Mr. Mitchell’s intent—there was

strong circumstantial evidence of intent to kill, most importantly “the fact that the

shooter stood in a short and narrow hallway, only a few feet from the victim and

fired a shotgun blast, ripping a gaping hole in the [victim’s] chest.” Id. (internal

quotation marks and citations omitted). According to the district court, given this

evidence Mr. Mitchell could not establish that the Oklahoma courts’ decisions

were contrary to or an unreasonable application of federal law. Id. On appeal,

Mr. Mitchell challenges this conclusion.



                                      Discussion

      For success on his § 2554 habeas petition, Mr. Mitchell must show that the

state court proceedings

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

      28 U.S.C. § 2254(d).

                                         -4-
      A state court’s decision is contrary to clearly established federal law where

“the state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law” or “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at a result

opposite to [the Court’s].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state

court decision is an unreasonable application of clearly established federal law

where it “identifies the correct governing legal principle from [the Supreme

Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner’s case. Id. at 413.

      For relief premised on a Brady violation, Mr. Mitchell must prove “that (1)

the prosecution suppressed evidence; (2) the evidence was favorable to the

defendant; and (3) the evidence was material to the defense.” Trammell v.

McKune, 485 F.3d 546, 551 (10th Cir. 2007) (internal quotation marks and

citation omitted). Evidence is material if there is a reasonable probability that the

evidence would have led to a different result; in such instances, “the

government’s evidentiary suppression undermines confidence in the outcome of

the trial.” Id. (internal quotation marks and citations omitted). Courts must

“evaluate the materiality of withheld evidence in light of the entire record in

order to determine if the omitted evidence creates a reasonable doubt that did not

otherwise exist.” Id. (internal quotation marks and citations omitted).


                                        -5-
      The district court was correct in deferring to the state court’s resolution,

specifically that notwithstanding the uncertainty of which co-defendant shot the

victim, the videotape would not have created a reasonable probability that the

outcome of the trial would have changed. 1 R. 28, 30. The discrepancies

between Mr. Strickland’s videotaped statement and his testimony at trial are

minor. See Mitchell, 2009 WL 6082847, at *8. Indeed, with respect to Mr.

Mitchell’s identity as the shooter, Mr. Strickland’s testimony on the

videotape—after what may be characterized as a minor misunderstanding or

clarification when Mr. Strickland first says he heard two shots, but immediately

thereafter says he heard a third shot when he was outside—is precisely the same

as his testimony at trial. Compare 1 R. 166-67 (video transcript) with State Ct.

Pleadings, Vol. 2 at 211-213 (trial transcript). Further, Gloria Wupori testified

that Mr. Mitchell told her he had shot someone in connection with the burglary.

Mitchell, 2009 WL 6082847, at *8; State Ct. Pleadings, Vol. 3 at 363-64.

      Mr. Mitchell argues that Ms. Wupori’s testimony was inconsistent, that Mr.

Strickland admitted to drug use on the videotape, that the state district court

might have made other evidentiary rulings given Mr. Strickland’s lack of

credibility, and that with the videotape, Mr. Mitchell could have avoided trial

altogether by negotiating a favorable plea bargain. Aplt. Br. 32-36; Aplt. Reply

Br. 6. However, Ms. Wupori’s allegedly inconsistent testimony does nothing to

bolster the value of the videotape—the jury heard Ms. Wupori’s testimony for

                                         -6-
itself, and was fully capable of weighing her credibility. The arguments relating

to the effects of Mr. Strickland’s admitted drug use and ability to plea bargain are

purely speculative; and, given the minor discrepancies between the videotape and

the other evidence available before trial, we seriously doubt the videotape would

have influenced the outcome of any pre-trial proceedings or evidentiary rulings.

Thus, the Oklahoma courts’ conclusions that the videotape was immaterial is not

contrary to or an unreasonable application of federal law. See 28 U.S.C.

§ 2254(d).

      Likewise with respect to Mr. Mitchell’s intent. Even absent Mr.

Strickland’s testimony, there is persuasive evidence that Mr. Mitchell shot with

the intent to kill—namely, the proximity of Mr. Mitchell to the victim and the

location of the wound. See Mitchell, 2010 WL 1141358 at *2; Cunnigan v. State,

747 P.2d 328 (Okla. Ct. Crim. App. 1987) (noting that the proximity of the

shooter and location of the wounds supports the inference of intent to kill). Thus,

whether Mr. Mitchell actually stated that he would kill anyone who came out of

the room—to which Mr. Strickland testified at trial but not on the videotape—is

immaterial.

      Finally, the taped polygraph test is also immaterial. In Oklahoma the

results of polygraph tests are inadmissible at trial for any purpose. See Matthews

v. State, 953 P.2d 336, 342 (Okla. Crim. App. 1998) (“[T]he results of polygraph

tests are not admissible for any purpose.”).

                                         -7-
AFFIRMED.


            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




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