                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 16, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    WILLARD EUGENE O’NEAL, JR.,

                Petitioner-Appellant,

    v.                                                  No. 10-5093
                                            (D.C. No. 4:06-CV-00610-CVE-PJC)
    GREG PROVINCE, Warden,                              (N.D. Okla.)

                Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.



         Willard Eugene O’Neal, Jr., was convicted in Oklahoma state court of

first-degree murder and shooting with intent to kill. Proceeding pro se, he seeks a

certificate of appealability (COA) to challenge the district court’s order denying

his 28 U.S.C. § 2254 petition for habeas relief. 1 We deny the request for a COA

for substantially the same reasons identified by the district court, and we dismiss

this appeal.




1
     Because O’Neal is proceeding pro se, we construe his filings liberally. See
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
                                   B ACKGROUND

      Bruce Chamberlain owned a nightclub in Tulsa, Oklahoma. In December

2001, he and one of his employees, Gildardo Rueda, were robbed and shot one

night by two masked men in the parking lot. Chamberlain died. Although Rueda

survived, he could not identify the men.

      Seven months later, a family recreating at nearby Lake Oolagah found a

pistol wrapped in a black ski mask in the water. Police compared the cartridge

casings found at the Chamberlain murder scene to those test fired from the pistol,

and determined they matched. They eventually traced the pistol to Charity

Owens.

      Owens told police that on the night of the shootings, her former boyfriend,

O’Neal, arrived late at her apartment with an unidentified man. O’Neal told her

that “something had gone bad and they needed to get rid of some stuff” in a rural

location. R., Vol. 1 at 195 (quotation marks omitted). Owens got in a car with

them and led them to Lake Oolagah. Along the way, O’Neal talked with the other

man about shooting Chamberlain and Rueda. At the lake, O’Neal threw two items

into the water, one of which was wrapped in something dark. While returning to

Tulsa, O’Neal threatened to kill Owens if she told anyone about the crimes.

      Police arrested O’Neal and charged him with first-degree murder and

shooting with intent to kill, both after multiple prior felony convictions. At the

preliminary hearing, Owens testified about the trip to Lake Oolagah and what was

                                           -2-
said along the way. But by the time of O’Neal’s trial, Owens had disappeared,

prompting the State to use her preliminary-hearing testimony. The State also

offered evidence that O’Neal had been involved in a robbery of the nightclub one

month before the shootings, had expressed disappointment with the proceeds, and

had asked a bouncer to help him create an alibi for the night of the shootings.

          The jury returned guilty verdicts, and the trial judge gave O’Neal two

consecutive life sentences, one of which lacked the possibility of parole. In 2005,

the Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and

sentences, and later affirmed the state district court’s denial of post-conviction

relief.

          O’Neal then filed a petition for federal habeas relief, arguing that the trial

court had improperly admitted Owens’s preliminary-hearing testimony and

evidence of the nightclub’s prior robbery. O’Neal also claimed ineffective

assistance of trial and appellate counsel. The district court denied the petition.

O’Neal unsuccessfully sought reconsideration and a COA before turning to this

court.

                                        D ISCUSSION

                                   I. Standard of Review

          A COA is a jurisdictional prerequisite to appealing the denial of a habeas

petition. See 28 U.S.C. § 2253(c); Allen v. Zavaras, 568 F.3d 1197, 1199

(10th Cir. 2009). “We will issue a COA only if the applicant has made a

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substantial showing of the denial of a constitutional right.” Allen, 568 F.3d

at 1199 (quotation omitted). “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.” Id.

(quotation omitted).

      When a state court has adjudicated a claim on the merits, the deferential

standard of review mandated by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) must be incorporated into our consideration of the request

for a COA. Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir. 2007). Habeas

relief is available under AEDPA only if the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court,” or “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)(1), (2).

                             II. Confrontation Clause 2

      O’Neal first challenges the admission of Owens’s preliminary-hearing

testimony. The OCCA determined that the testimony was properly admitted

because (1) the State reasonably and diligently tried to locate her by issuing a

2
      The Sixth Amendment’s Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI.

                                         -4-
material-witness warrant, contacting her friends and family members, and placing

an alert throughout local media; and (2) O’Neal’s counsel cross-examined her at

the hearing.

      O’Neal contends that Owens’s testimony should have been excluded

because she deliberately avoided testifying at trial, because a preliminary hearing

provides less of an opportunity for cross-examination than a trial, and because her

testimony related a statement of the unidentified, non-testifying accomplice. The

federal district court rejected those arguments, and concluded that the OCCA

reasonably applied Crawford v. Washington’s holding that the admission of

testimonial hearsay evidence from a proceeding such as a preliminary hearing

requires witness unavailability and a prior opportunity for cross-examination.

541 U.S. 36, 68 (2004). The district court aptly noted that this test focuses on the

State’s efforts in securing the witness’s presence at trial, not on the witness’s

efforts in evading trial. Further, under Crawford, a preliminary hearing affords

sufficient opportunity for cross-examination, see id., and statements made in

furtherance of a conspiracy do not implicate the Confrontation Clause because

they are not testimonial, see id. at 56.

      We conclude that the district court’s resolution of O’Neal’s

Confrontation-Clause challenge is not debatable.




                                           -5-
                         III. Evidence of the Prior Robbery

      O’Neal argues that the admission of evidence showing his involvement in

the prior robbery of the nightclub violated his due-process rights because there

was insufficient evidence of the robbery. The OCCA determined that the trial

court properly admitted the evidence after holding a hearing and ruling that the

evidence tended to show “O’Neal’s motive, intent and plan to commit another

robbery at the same site.” R., Vol. 1 at 199.

      The district court rejected O’Neal’s due-process argument, noting that

federal habeas review of a state’s application of its evidentiary rules extends only

to assessing the fundamental fairness of the defendant’s trial. See Knighton v.

Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002). In concluding that the admission

of the prior robbery evidence did not deny O’Neal a fair trial, the district court

observed that three witnesses testified about the prior robbery, it was highly

probative of O’Neal’s intent, motive, and plan to again rob the nightclub, and the

jury was instructed to not consider the evidence as proof of guilt or innocence.

      We conclude that the district court’s resolution of this issue is not

debatable. Evidence of the prior robbery did not deny O’Neal a fair trial.

                       IV. Ineffective Assistance of Counsel

      To establish ineffective assistance, a petitioner must show that counsel

performed deficiently, and that the deficient performance so prejudiced the

defense “that there is a reasonable probability that, but for counsel’s

                                          -6-
unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

       O’Neal contends that his trial counsel provided ineffective assistance by

(1) filing a petition to compel his presence at trial without the presence of Owens;

(2) not retaining an expert to challenge the State’s ballistic evidence; (3) not

objecting at the preliminary hearing to Owens’s testimony recounting the

accomplice’s statement; (4) not requesting a jury instruction that his conviction

would require him to serve 85% of any sentence before becoming eligible for

parole; and (5) not calling alibi witness Lois Snyder. O’Neal also contends that

his appellate counsel was ineffective in failing to raise these points on direct

appeal. In state post-conviction proceedings, the OCCA cited Strickland, and

held that neither trial nor appellate counsel performed deficiently or prejudiced

the defense.

       The federal district court addressed and rejected each area of purported

ineffective assistance. Regarding trial counsel’s efforts to gain O’Neal’s

participation in his own trial, the district court determined that once it was clear

that the trial court would no longer postpone the trial due to Owens’s absence,

defense counsel acted appropriately to ensure that O’Neal did not waive his right

to attend trial. We agree with the district court that counsel did not perform

deficiently in protecting his client’s right to attend trial.




                                            -7-
      As for defense counsel’s failure to retain a ballistic expert, the district court

noted that the State’s expert acknowledged that comparing the bullets used at the

crime scene to bullets test fired from the pistol was inconclusive. Thus, calling

an expert to establish that point was unnecessary. 3

      Turning to O’Neal’s argument that counsel should have objected to

Owens’s testimony about what O’Neal’s accomplice said during the drive to

Lake Oolagah, the district court correctly noted that the accomplice’s statements

were admissible non-hearsay. See Okla. Stat. Ann. tit. 12, § 2801(B)(2)(e).

Consequently, failing to object was not deficient performance.

      Regarding counsel’s failure to request a jury instruction about Oklahoma’s

85% rule, the district court correctly observed that there is no federal requirement

for instructing jurors about parole eligibility in a non-capital case, and that when

O’Neal was tried, Oklahoma law did not require such an instruction. See

Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (holding “that where the

[capital] defendant’s future dangerousness is at issue, and state law prohibits the

defendant’s release on parole, due process requires that the sentencing jury be

informed that the defendant is parole ineligible”); Anderson v. State, 130 P.3d

273, 283 (Okla. Crim. App. 2006) (stating that “[a] trial court’s failure to instruct


3
       While O’Neal now argues that an expert could have been called to opine
that the bullet casings did not match, that was not O’Neal’s argument in the
habeas petition. Consequently, that argument is waived. See Parker v. Scott,
394 F.3d 1302, 1307 (10th Cir. 2005).

                                          -8-
on the 85% Rule in [prior] cases . . . will not be grounds for reversal”). Thus,

failure to object was not deficient performance.

      Finally, the district court determined that Snyder’s alibi testimony would

have merely been cumulative of the alibi witness who did testify for O’Neal.

Further, neither that testimony nor Snyder’s anticipated testimony would have

foreclosed O’Neal’s possible involvement in the shootings. Consequently, even if

counsel performed deficiently in failing to call Snyder as a corroborating alibi

witness, we are not convinced that there is a reasonable probability it affected the

trial’s outcome.

      We conclude that reasonable jurists could not debate the district

court’s determination that the OCCA did not unreasonably apply Strickland

in rejecting O’Neal’s ineffective-assistance-of-trial-counsel claims. Nor could

reasonable jurists debate the district court’s ancillary determination that

appellate counsel was not ineffective in failing to argue these meritless

ineffective-assistance-of-trial-counsel claims.

                                    C ONCLUSION

      After reviewing the application for a COA, the record, the district court’s

orders, and the applicable law, we conclude that O’Neal has failed to meet the

standard for issuance of a COA. Accordingly, for substantially the same reasons




                                          -9-
stated in the district court’s order denying habeas relief, filed June 1, 2010, we

DENY the request for a COA and DISMISS this appeal.



                                        Entered for the Court,




                                        ELISABETH A. SHUMAKER, Clerk




                                         -10-
