                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           May 21, 2012
                                    TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

JAMES LYNN KIDWELL,
             Petitioner - Appellant,
v.                                                            No. 12-5042
                                                 (D.C. No. 4:08-CV-00596-CVE-FHM)
                                                              (N.D. Okla.)
TERRY MARTIN, Warden,

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*



Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.



       James L. Kidwell, an Oklahoma state prisoner proceeding pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s dismissal of his 28

U.S.C. § 2254 petition. We deny his request for a COA and dismiss this matter.




       *This order and judgment is not binding precedent, except under the doctrines of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.
       1
         Because Mr. Kidwell is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
                                 I.    BACKGROUND

       A. Factual Background

        In February 2003, Mr. Kidwell began communicating with Rebecca Barney on a

dating website. On February 21, 2003, Mr. Kidwell met Ms. Barney at a bar in Tulsa,

Oklahoma. Shortly before 2 a.m. on February 22, 2003, Mr. Kidwell accompanied Ms.

Barney back to her home, which Ms. Barney shared with her ex-husband, Fred Barney.

       At 3:10 a.m.—less than 90 minutes after Mr. Kidwell and Ms. Barney left the

bar—the Tulsa fire department received a 911 call reporting a fire at the Barneys’

residence. The caller who reported the fire identified himself as Kenneth Maxwell.

While the dispatcher spoke to Mr. Maxwell, he heard another man’s voice in the

background. Immediately after the dispatcher heard the voice, the telephone call

terminated.

       At 3:14 a.m., firefighters arrived at the Barneys’ residence. The firefighters saw a

man—later identified as Mr. Maxwell, the 911 caller—in a vehicle blocking the road in

front of the Barneys’ home. The firefighters assumed Mr. Maxwell was asleep and

attempted to wake him up, but they discovered that Mr. Maxwell had been shot in the

back of his head.

       After entering the Barneys’ home, firefighters discovered that someone had started

a fire in the kitchen by pulling a gas line out of the wall and setting the line on fire.




                                               2
The firemen then found Mr. Barney, who had been fatally shot, lying on the floor in a

pool of blood. They also found Ms. Barney, who had been critically injured from a

gunshot wound to the head, lying naked on her bed.

       Emergency personnel took Ms. Barney and Mr. Maxwell to the hospital. Both

died a short time later without ever regaining consciousness.

       During their investigation of the scene, the police found no signs of forced entry

but discovered that a computer tower was missing. Next to where the computer tower

had been, police recovered a computer-printed photograph of Mr. Kidwell.

       B. Procedural Background

       Following an investigation by multiple law enforcement agencies, Mr. Kidwell

was arrested and charged with three counts of first-degree murder. Mr. Kidwell pled not

guilty to the charges and requested a jury trial.

       Mr. Kidwell’s trial began on November 23, 2004. During its case-in-chief, the

prosecution presented evidence that: (1) Mr. Kidwell admitted to police that he went to

the Barneys’ home between 1:45 and 2:00 a.m. on February 23, 2003; (2) firefighters

discovered the Barneys and Mr. Maxwell less than two hours after Mr. Kidwell was last

seen with Ms. Barney; (3) DNA extracted from semen collected from Ms. Barney’s body

matched Mr. Kidwell’s DNA; (4) DNA samples collected from a sweatshirt at Mr.

Kidwell’s home and from the gearshift knob of Mr. Kidwell’s vehicle matched Ms.

Barney; (5) Mr. Kidwell’s photo was found next to where the missing computer had

been; (6) Mr. Kidwell placed Ms. Barney on a “block list” on the dating website where he



                                              3
met her; and (7) information relating to Ms. Barney had been deleted from Mr. Kidwell’s

computer.

       The prosecution also presented testimony from Jack Harris, a jailhouse informant.

Mr. Harris stated that Mr. Kidwell had told him he was worried about the voice heard in

the background during Mr. Maxwell’s 911 call. Mr. Harris testified: “‘[Mr. Kidwell

asked] do you think the FBI has the technology available to enhance it and get a voice

print off of it? And I said I think so. [Mr. Kidwell responded] then I think I’m fucked.’”

ROA at 39 (quoting Tr. Trans. Vol. IX, at 45).

       On December 2, 2004, a jury found Mr. Kidwell guilty on all three counts of first-

degree murder. On December 15, 2004, the state trial court sentenced Mr. Kidwell to life

imprisonment without the possibility of parole on each of the three counts, to run

consecutively.

       Mr. Kidwell appealed his conviction to the Oklahoma Court of Criminal Appeals

(“OCCA”). On February 26, 2007, the OCCA issued an unpublished opinion affirming

Mr. Kidwell’s conviction.

       On May 20, 2008, Mr. Kidwell filed his first application for state post-conviction

relief, which the OCCA denied. On July 9, 2009, Mr. Kidwell filed a second application

for state post-conviction relief, which the OCCA also denied.

       On April 13, 2010, Mr. Kidwell filed a pro se petition for writ of habeas corpus in

the United States District Court for the Northern District of Oklahoma pursuant to 28

U.S.C. § 2254. On March 5, 2012, the federal district court issued an order rejecting all

of Mr. Kidwell’s claims and denying his § 2254 petition.

                                            4
       Mr. Kidwell filed a timely notice of appeal and a request for a COA seeking to

challenge the district court’s denial of his § 2254 petition.

                                    II. DISCUSSION

       A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition.

28 U.S.C. § 2253(c)(1)(A); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).

To receive a COA, a petitioner must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant

must demonstrate “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, 484 (2000) (quotations omitted).

       In his application for a COA, Mr. Kidwell asserts five claims of error. First, he

contends that the federal district court erred in rejecting his claims of ineffective

assistance of appellate counsel. Second, he argues that the federal district court erred in

rejecting his claim that the evidence introduced during his trial was insufficient to support

his convictions. Third, he contends that the federal district court erred in rejecting his

claim that jury instructions given during his trial violated his right to due process.

Fourth, he argues that the federal district court erred in rejecting his claims that his rights

under the Fourth Amendment were violated during his arrest and trial. Finally, Mr.

Kidwell contends that the district court erred in rejecting his claim of cumulative error.

       We address each of Mr. Kidwell’s arguments in turn.

       A. Ineffective Assistance of Appellate Counsel

                                               5
       To establish a claim of ineffective assistance of counsel, a petitioner must show

both (1) constitutionally deficient performance and (2) resulting prejudice. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). When a habeas petitioner alleges

that his appellate counsel rendered ineffective assistance by failing to raise an issue on

direct appeal, we focus on the merits of the omitted claims to determine whether the

petitioner has satisfied both of Strickland’s elements. See Cargle v. Mullin, 317 F.3d

1196, 1202 (10th Cir. 2003).

       If the omitted issue is without merit, appellate counsel’s failure to raise it is not

ineffective assistance of counsel. See id. Thus, to satisfy Strickland’s deficient

performance element, a habeas petitioner “must . . . show that his [appellate] counsel was

objectively unreasonable in failing to find arguable issues to appeal—that is, that counsel

unreasonably failed to discover nonfrivolous issues and to file a merits brief raising

them.” Smith v. Robbins, 528 U.S. 259, 285 (2000) (citations omitted). To satisfy

Strickland’s prejudice element, a petitioner must establish “a reasonable probability that,

but for his counsel’s unreasonable failure to [raise an issue], he would have prevailed on

his appeal.” Id.

       In his § 2254 petition, Mr. Kidwell alleged that his direct appeal counsel was

ineffective for failing to raise several claims of ineffective assistance of trial counsel. In

relevant part, Mr. Kidwell argued that his direct appeal counsel should have argued that

trial counsel failed to hire a computer analyst and that trial counsel improperly persuaded

him not to testify during his trial. The federal district court noted that Mr. Kidwell had

asserted these ineffective assistance of counsel claims in his first petition for state post-

                                               6
conviction relief and that the OCCA had rejected the claims. But it determined that the

standard the OCCA had applied to Mr. Kidwell’s claims “deviate[d] from the controlling

federal standard.” Kidwell v. Martin, No. 08-CV-0596-CVE-FHM, 2012 U.S. Dist.

LEXIS 28465, at *21 (N.D. Okla. Mar. 5, 2012). It therefore concluded that the OCCA’s

analysis of Mr. Kidwell’s claims of ineffective assistance of appellate counsel was not

entitled to deference under the Antiterrorism and Effective Death Penalty Act. See

id at *22; see also Cargle, 317 F.3d at 1205 (“Because the OCCA’s analysis of

petitioner’s appellate ineffectiveness allegations deviated from the controlling federal

standard, . . . it is not entitled to deference.” (quotations omitted)). After reviewing Mr.

Kidwell’s claims de novo, the district court held that his claims were meritless.

       In his application for a COA, Mr. Kidwell contends that the district court erred in

rejecting his claims of ineffective assistance of appellate counsel. For the reasons

discussed below, we conclude that reasonable jurists could not debate the district court’s

conclusion that Mr. Kidwell’s claims lack merit.

              1. Failure to Hire a Computer Analyst

       During Mr. Kidwell’s trial, the State introduced evidence that Mr. Kidwell had

placed Ms. Barney on a “block list” on the dating website where he met Ms. Barney. In

his § 2254 petition, Mr. Kidwell argued that his direct appeal counsel was ineffective

because he did not argue that trial counsel provided ineffective assistance by failing to

hire a computer analyst. Mr. Kidwell suggested that the computer analyst “could have

better explained the computer-related evidence from the defense’s point of view.”

Kidwell, 2012 U.S. Dist. Lexis 28465, at *25 (quotations omitted).

                                              7
       The federal district court rejected this claim, stating: “[Mr. Kidwell] has failed to

satisfy the prejudice prong of the Strickland standard. [He] has not convinced the [c]ourt

that testimony from a computer analyst regarding common practices of persons utilizing

Internet dating sites would have resulted in a different outcome at trial.” Id. at *26.

       In his application for a COA, Mr. Kidwell contends that the district court erred in

concluding that he failed to establish prejudice. In a single sentence in his brief, Mr.

Kidwell argues that “counsel’s deficiencies resulted in an outcome different than that

which would have been reached had counsel acted in accordance with the prevailing

professional norms.” Aplt. Br. at 10. We have repeatedly stated that such conclusory

allegations do not satisfy Strickland’s prejudice element. See, e.g., Stafford v. Saffle, 34

F.3d 1557, 1564-65 (10th Cir. 1994) (stating that vague and conclusory evidence is

insufficient to satisfy the prejudice prong of Strickland); see also Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se plaintiffs must allege

sufficient facts on which a recognized legal claim can be based and that conclusory

allegations will not suffice).

       Because Mr. Kidwell has not offered analysis suggesting that direct appeal

counsel’s alleged deficiency resulted in prejudice, he has failed to demonstrate that

reasonable jurists would debate the correctness of the district court’s rejection of this

claim. We therefore hold that Mr. Kidwell is not entitled to a COA on this claim.

              2. Improper Advice Dissuading Mr. Kidwell from Testifying

       In his § 2254 petition, Mr. Kidwell argued that his direct appeal counsel failed to

argue that his trial counsel provided ineffective assistance by improperly coercing him

                                              8
not to testify at trial. The federal district court rejected this claim. It noted that during

trial, Mr. Kidwell stated that his lawyers were not forcing him not to testify and that it

was his free and voluntary choice not to testify. The district court concluded that Mr.

Kidwell’s statements contradicted his assertion that his trial counsel coerced him not to

testify and that Mr. Kidwell had “failed to overcome the strong presumption that his

declarations to the trial court regarding his decision not to testify were truthful.” Kidwell,

2012 U.S. Dist. Lexis 28465, at *30. The district court therefore held that Mr. Kidwell

had not demonstrated that his appellate counsel was ineffective for failing to assert this

claim on direct appeal.

       In his application for a COA, Mr. Kidwell contends that the district court erred in

rejecting his claim. But as the district court noted, during Mr. Kidwell’s trial, Mr.

Kidwell stated that he had freely and voluntarily decided not to testify. The Supreme

Court has emphasized that “[s]olemn declarations in open court carry a strong

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). And Mr. Kidwell

has failed to rebut the presumption that his statements at trial were truthful. We therefore

conclude that reasonable jurists could not debate the correctness of the district court’s

rejection of this claim and deny Mr. Kidwell’s request for a COA on this claim.

       B. Sufficiency of the Evidence

       In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court explained that

evidence is sufficient to affirm a conviction on appeal if “after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 319.

                                               9
       On direct appeal, Mr. Kidwell argued that the State failed to present sufficient

evidence at trial to support his convictions for first-degree murder.2 After “[r]eviewing

the evidence [presented during Mr. Kidwell’s trial] in the light most favorable to the

State,” the OCCA concluded that “any rational trier of fact could [have found] the

elements of the charged offenses beyond a reasonable doubt.” Kidwell v. Oklahoma, No.

F-2004-1267, slip op. at 9 (Okla. Crim. App. Feb. 26, 2007). The OCCA therefore

rejected Mr. Kidwell’s claim of insufficient evidence.

       In his § 2254 petition, Mr. Kidwell argued that the OCCA erred in denying his

claim. The federal district court rejected Mr. Kidwell’s argument.

       In his application for a COA, Mr. Kidwell argues that the OCCA and the federal

district court erred in rejecting his insufficiency of the evidence claim. Mr. Kidwell

concedes that he was with Ms. Barney on the day she was murdered, that his DNA was

found inside Ms. Barney’s body, and that Ms. Barney’s DNA was found on his sweatshirt

and on the gearshift knob of his vehicle. But he argues “[t]hese facts do not point to

evidence of guilt for the three homicides.” Aplt. Br. at 11. Rather, he contends that this

evidence proves only that he and Ms. Barney had sexual intercourse the morning that Ms.

Barney was murdered.




       2
        Under Oklahoma law, first-degree murder is defined as unlawfully killing another
person with malice aforethought. See Okla. Stat. tit. 21, § 701.7. “[P]remeditated design
sufficient to establish malice aforethought may be inferred from the fact of killing alone,
unless the facts and circumstances raise a reasonable doubt as to whether such design
existed.” Hancock v. State, 155 P.3d 796, 812 (Okla. Crim. App. 2007).

                                            10
       We agree with Mr. Kidwell that the DNA evidence does not directly prove that he

murdered the Barneys and Mr. Maxwell. But during Mr. Kidwell’s trial, the State

presented additional evidence, including Mr. Harris’s testimony regarding Mr. Kidwell’s

concern that the FBI could identify the voice of the man heard in the background during

Mr. Maxwell’s 911 call.

       Affording proper deference to the OCCA, see Felkner v. Jackson, 131 S. Ct. 1305,

1307 (2011) (per curiam), and viewing the evidence presented during Mr. Kidwell’s trial

in the light most favorable to the State, we cannot say that that no rational trier of fact

could have found the essential elements of Mr. Kidwell’s offense of conviction to be

proven beyond a reasonable doubt, see Jackson, 443 U.S. at 319. We hold that

reasonable jurists could not debate the federal district court’s rejection of Mr. Kidwell’s

claim of insufficient evidence and deny Mr. Kidwell’s request for a COA on this claim.

       C. The Jury Instruction

       During Mr. Kidwell’s trial, his defense counsel asked the court to give a jury

instruction defining the “beyond a reasonable doubt” standard as evidence sufficient to

exclude every reasonable hypothesis other than guilt. The trial court denied the request

and instructed the jury as follows:

              The State relies in part for a conviction upon circumstantial
              evidence. In order to warrant conviction of a crime upon
              circumstantial evidence, each fact necessary to prove the guilt
              of the defendant must be established by the evidence beyond
              a reasonable doubt. All of the facts and circumstances, taken
              together, must establish to your satisfaction the guilt of the
              defendant beyond a reasonable doubt.

ROA at 47 (emphases added).

                                              11
       On direct appeal, Mr. Kidwell argued that the trial court had erred in failing to

give the jury the instruction he requested. The OCCA rejected Mr. Kidwell’s claim.

       In his § 2254 petition, Mr. Kidwell argued that the OCCA erred in denying his

claim that the omission of the requested jury instruction violated his right to due process.

To support this assertion, Mr. Kidwell contended that the OCCA’s rejection of his claim

on direct appeal was contrary to the Supreme Court’s decision in Holland v. United

States, 348 U.S. 121, 140 (1954).

       In Holland, the Supreme Court rejected the petitioner’s argument that where the

government’s evidence is circumstantial, trial judges must instruct the jury that the

circumstantial evidence “must be such as to exclude every reasonable hypothesis other

than that of guilt.” Id. at 139. The Court stated that “where the jury is properly

instructed on the standards for reasonable doubt, such an additional instruction on

circumstantial evidence is confusing and incorrect.” Id. at 139-40.

       Relying on Holland, Mr. Kidwell acknowledged that when “a proper reasonable

doubt instruction is given, a jury need not be instructed that circumstantial evidence must

be so strong as to exclude every reasonable hypothesis other than guilt.” Aplt. Br. at 12-

13. But he argued that the instruction given during his trial was not a proper reasonable

doubt instruction because it did not define reasonable doubt. He further argued that it is

necessary “to define ‘reasonable doubt’ to the jury . . . if the jury is not instructed that

circumstantial evidence must be so strong as to exclude every reasonable hypothesis

other than guilt.” Id. at 13. The federal district court rejected this argument.



                                              12
         In his application for a COA, Mr. Kidwell argues that the district court erred in

rejecting his claim that his right to due process was violated by the district court’s failure

to give his requested jury instruction. We reject this argument.

         We recognize that “the reasonable-doubt standard plays a vital role in the

American scheme of criminal procedure.” In re Winship, 397 U.S. 358, 363 (1970). But

the Supreme Court has made clear that “[t]he Constitution neither prohibits trial courts

from defining reasonable doubt nor requires them to do so as a matter of course.” Victor

v. Nebraska, 511 U.S. 1, 5 (1994) (emphasis added). “[S]o long as the [trial] court

instructs the jury on the necessity that the defendant’s guilt be proved beyond a

reasonable doubt, the Constitution does not require that any particular form of words be

used in advising the jury of the government’s burden of proof.” Id. (citation omitted).

         Here, the trial court specifically instructed the jury that it had to find that the

circumstantial evidence presented by the State proved Mr. Kidwell guilty beyond a

reasonable doubt. And the instruction given by the trial court “was not of the type that

could mislead the jury into finding no reasonable doubt when in fact there was some.”

Holland, 348 U.S. at 140. Accordingly, Mr. Kidwell has failed to demonstrate that

reasonable jurists would debate the correctness of the district court’s denial of his jury

instruction claim. We therefore hold that Mr. Kidwell is not entitled to a COA on this

claim.

         D. Fourth Amendment Claims

         On direct appeal, Mr. Kidwell asserted several Fourth Amendment claims, which

the OCCA rejected. In his § 2254 petition, Mr. Kidwell challenged the OCCA’s analysis.

                                                13
The federal district court concluded that Mr. Kidwell’s Fourth Amendment claims were

barred from federal habeas review under Stone v. Powell, 428 U.S. 465 (1976).

       In Stone, the Supreme Court held that “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” Id. at 494. The

opportunity for full and fair litigation “includes, but is not limited to, the procedural

opportunity to raise or otherwise present a Fourth Amendment claim,” a “full and fair

evidentiary hearing,” and “at least colorable application of the correct Fourth Amendment

constitutional standards.” Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978).

       In his application for a COA, Mr. Kidwell suggests that he did not have a full and

fair opportunity to litigate his Fourth Amendment claims in state court. But the record in

this case demonstrates that Mr. Kidwell asserted his Fourth Amendment claims in a pre-

trial motion to suppress, during his trial, and on direct appeal. Mr. Kidwell has not

demonstrated that these opportunities were unfair or that they were insufficient to fully

litigate his Fourth Amendment claims. Accordingly, Mr. Kidwell has failed to establish

that reasonable jurists would debate the correctness of the federal district court’s

conclusion that Mr. Kidwell’s Fourth Amendment claims are barred from federal habeas

review. We therefore deny Mr. Kidwell a COA on this issue.

       E. Cumulative Error

       On direct appeal, Mr. Kidwell argued that cumulative error during his trial

deprived him of his right to due process. The OCCA rejected his claim. In his § 2254

                                              14
petition, Mr. Kidwell argued that the OCCA had erred in rejecting his claim of

cumulative error. The federal district court rejected his argument. In his application for a

COA, Mr. Kidwell contends that the federal district court erred in rejecting his claim of

cumulative error.

       “Cumulative-error analysis applies [only] where there are two or more

[constitutional] errors. It does not apply . . . to the cumulative effect of non-errors.”

Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999) (quotations omitted).

       Mr. Kidwell has failed to establish that any constitutional errors occurred during

his trial. Accordingly, reasonable jurists could not debate the correctness of the district

court’s rejection of Mr. Kidwell’s claim of cumulative error. See United States v.

Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009) (noting that a court must “refrain from

engaging in a cumulative error analysis” where there are not at least two constitutional

errors). We therefore deny Mr. Kidwell’s request for a COA on this issue.

                                  III. CONCLUSION

       Mr. Kidwell has failed to demonstrate that reasonable jurists would debate the

correctness of the district court’s denial of his § 2254 petition. We therefore deny Mr.

Kidwell’s application for a COA and dismiss this matter.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                              15
