                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS                 July 30, 2013
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 DANIEL LEE WILSON,

              Petitioner - Appellant,                   No. 12-7078
       v.                                  (D.C. No. 6:09-CV-00422-JHP-KEW)
 RANDY WORKMAN,                                         (E.D. Okla.)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Applicant Daniel Lee Wilson, an Oklahoma state prisoner, applied for relief

under 28 U.S.C. § 2254 in the United States District Court for the Eastern District

of Oklahoma. The district court denied the application. Applicant now seeks a

certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of § 2254 application). We deny a COA and dismiss the appeal.

I.    BACKGROUND

      In April 2005 Applicant was charged by information in Oklahoma state

court on counts of first-degree murder and discharging a firearm into an occupied

dwelling. The charges related to two shootings in the Morgan Hill area of

LeFlore County, Oklahoma. Michael Clark, whom Applicant describes as the
state’s “key witness,” Aplt. Br. at 7 (emphasis omitted), testified that he rode with

Applicant to Morgan Hill on the night of April 4, 2005, where Applicant fired a

rifle into a house. Inside the house, Antonio Salinas Mares sustained a gunshot

wound to the head and died. Shell casings also linked Applicant to a second

shooting at a nearby mobile home.

      To establish Applicant’s motive for the shootings, the state presented the

testimony of Isidro Salinas, an uncle of Mares. Salinas testified that about two

months before the shootings, Applicant kidnapped him, forced him to inject drugs

and have sex with Applicant’s girlfriend, and then demanded that he pay

Applicant $600. He further testified that Applicant had menaced him with a gun

and threatened to “‘kill all of you’” if he was not paid the money. R., Vol. 1 pt. 4

at 655.

      The jury found Applicant guilty on both counts, and the court sentenced

him to life for the murder and 35 years’ imprisonment for the firearm count. He

appealed to the Oklahoma Court of Criminal Appeals (OCCA), challenging the

admission of Salinas’s testimony regarding the kidnapping incident. The OCCA

affirmed. Applicant then sought state postconviction relief on the grounds (1)

that his trial counsel had rendered ineffective assistance by failing to present

witnesses who could have discredited Clark; (2) that his appellate counsel (a

different lawyer) had rendered ineffective assistance by failing to raise trial

counsel’s ineffectiveness on direct appeal; and (3) that the trial court had

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improperly limited his cross-examination of Clark. The state trial court denied

relief and the OCCA affirmed the denial. The court held that Applicant had

waived the ineffective-assistance-of-trial-counsel claim by failing to raise the

claim on direct appeal, and it summarily rejected on the merits the claim of

ineffective assistance of appellate counsel.

      In October 2009 Applicant filed his § 2254 application. He argued that the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is

unconstitutional because it violates Article III of the United States Constitution

and the principle of separation of powers. In addition, he repeated his arguments

that the admission of Salinas’s testimony deprived him of a fair trial, that he had

received ineffective assistance of trial and appellate counsel, and that he was

denied a fair opportunity to cross-examine Clark. The district court denied relief

and denied a COA. Applicant now seeks a COA from this court so that we may

review the district court’s decision. He pursues all the issues raised in his § 2254

application except his constitutional challenge to AEDPA.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [application] should have been

resolved in a different manner or that the issues presented were adequate to

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deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      AEDPA provides that when a question of federal law has been adjudicated

on the merits in state court, a federal court can grant habeas relief only if the

applicant establishes that the state-court decision 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). As we have

explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court 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. (brackets and internal quotation

marks omitted). Thus, a federal court may not grant habeas relief simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,


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that application must have been unreasonable. Moreover, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of

[Applicant’s] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004).

      A.      Admission of Salinas’s testimony

      Applicant first claims that Salinas’s testimony regarding the kidnapping

and forced-sex incident was irrelevant, unreliable, and highly prejudicial.

Therefore, he argues, the trial court’s decision to admit the testimony violated his

Sixth and Fourteenth Amendment rights to a fair trial and due process. In

addressing this claim, the district court correctly noted that the admission of

evidence of other wrongful acts would entitle Applicant to habeas relief only if it

rendered his trial fundamentally unfair. See Knighton v. Mullin, 293 F.3d 1165,

1171 (10th Cir. 2002). And it correctly determined that the challenged testimony

was relevant and did not deprive Applicant of a fair trial. No reasonable jurist

would debate the court’s denial of this claim.

      B.      Ineffective assistance of counsel

      Applicant next claims that he was denied effective assistance of counsel.

To establish a claim of ineffective assistance of counsel, Applicant had to

demonstrate that his counsel’s performance fell below “an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and “that




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there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694.

      Applicant contends that his trial counsel was ineffective, and that his

appellate counsel was ineffective in failing to raise on direct appeal the alleged

deficiencies in trial counsel’s performance. We can reject both claims for the

same reason. Applicant cannot show deficient performance of appellate counsel

in omitting an issue (here, ineffectiveness of trial counsel) if the issue lacks merit.

See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Because the district

court correctly concluded that Applicant’s ineffective-assistance-of-trial-counsel

claim lacks merit, his ineffective-assistance-of-appellate-counsel claim

necessarily fails too.

      Applicant alleges that his trial counsel was ineffective in failing to call four

witnesses who would have impeached Clark’s incriminating testimony and

suggested that Clark was the one responsible for the shootings: Jesus Cavillo,

Rickey Wayne Dunigan, Randall W. Oakes, and Evelyn Wilson. The district

court ruled that the OCCA reasonably determined that Applicant failed to satisfy

Strickland’s deferential standard. First, it explained that Cavillo’s testimony

would not have conflicted with the key aspects of Clark’s, and that in light of the

considerable evidence of guilt, the failure to call Cavillo did not prejudice

Applicant. Second, it ruled that Applicant suffered no prejudice from the failure

to call Dunigan (a prisoner at the time of trial), whose testimony had been

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excluded by the trial court on a motion in limine because it would have been

based on Clark’s conduct four years earlier, too far in the past to be relevant.

Third, it concluded that the only admissible testimony from Oakes would have

concerned Clark’s reputation for truthfulness and that the omission of this

testimony did not prejudice Applicant because his counsel had thoroughly

attacked Clark’s credibility on cross-examination and because the opinion of

Oakes—a seven-time convicted felon—would have been of little value. And

fourth, it ruled that Applicant had failed to demonstrate that his trial counsel

acted unreasonably in failing to call Wilson, because the record contained no

evidence, nor had Applicant even alleged, that his counsel knew or should have

known at the time of trial of Wilson’s proposed testimony. No reasonable jurist

would debate the court’s denial of these claims.

      C.     Restriction on cross-examination

      Finally, Applicant claims that the trial court improperly denied him the

opportunity to question Clark about his relationship with the Mexicans who lived

in Morgan Hill. He asserts that when his counsel attempted to explore the topic

on cross-examination, the court sustained an objection by the state. According to

Applicant, had counsel been allowed to proceed, he would have elicited that it

was Clark, not Applicant, who had a motive to attack Mares and others who lived

in the area. Thus, he argues, the court’s ruling deprived him of the opportunity to

present a defense in violation of his due-process rights. See Crane v. Kentucky,

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476 U.S. 683, 690 (1986) (Constitution guarantees meaningful opportunity to

present complete defense).

      The district court did not specifically address this claim, but it clearly lacks

merit. The trial court did not prohibit relevant cross-examination. Its only

restriction was to sustain without explanation an objection to the question,

“What’s your relationship with the Mexicans that you deal drugs to?” R., Vol. 1

pt. 3 at 559. Immediately preceding that question, however, the court allowed the

following exchange: “Q: What’s your relationship with the Mexicans that lived

in these houses? A: I don’t even know ‘em.” Id. Because Clark had testified

that he did not know the Mexicans who lived in the homes where the shootings

took place, his answer concerning his relationship with presumably different

Mexicans to whom he dealt drugs would have been irrelevant. Applicant’s trial

counsel offered no argument to the contrary; rather, he immediately directed his

cross-examination to a different topic after the court sustained the state’s

objection.

      To the extent that Applicant argues that his appellate counsel was

ineffective in failing to raise this alleged error by the trial court, the claim fails

because the court committed no error. See Cargle, 317 F.3d at 1202.




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III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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