                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS                   June 28, 2012
                                      TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                          Clerk of Court


  BILLY GENE MARSHALL,

            Petitioner-Appellant,
                                                               No. 12-5054
  v.                                              (D.C. No. 4:08-CV-00748-CVE-TLW)
                                                              (N. D. Okla.)
  JAMES RUDEK, Warden,

            Respondent-Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


           Billy Gene Marshall, an Oklahoma prisoner proceeding pro se, seeks a certificate

of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254

habeas corpus petition. Because reasonable jurists could not debate whether the state

court’s decision on the merits of Marshall’s constitutional claim was unreasonable or

contrary to clearly established federal law, we deny his COA request and dismiss this

matter. Dockins v. Hines, 374 F.3d 935, 937–38 (10th Cir. 2004).




       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
                                              I

       In 2007, an Oklahoma jury convicted Marshall of Robbery with a Dangerous

Weapon, Okla. Stat. tit. 21, § 801, after conviction of two or more felonies. The jury

found that Marshall robbed the J&J Bargain Depot, in Tulsa, Oklahoma after hitting the

sales clerk in the back of the head with a hammer. He took money, lottery tickets, and

two comforters. In accordance with the jury’s recommendation, the court sentenced

Marshall to life imprisonment, due in part to his criminal history. He appealed his

conviction to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his

conviction in an unpublished summary opinion. Marshall v. Oklahoma, No. F-2007-815

(Okla. Crim. App. Nov. 18, 2008).

       On January 18, 2011, Marshall filed a habeas corpus petition in the United States

District Court for the Northern District of Oklahoma, challenging his conviction under

28 U.S.C. § 2254. Marshall’s petition focused on four arguments. First, he argued that

the victim’s in-court identification of Marshall as the robber violated Marshall’s

constitutional right to due process. Second, Marshall argued that the evidence was

insufficient to convict him of the crime of robbery. Third, he argued that he was denied

the effective assistance of counsel when his trial counsel failed to investigate and utilize

DNA evidence which was allegedly exculpatory. Finally, Marshall argued that he was

denied the effective assistance of counsel because his trial counsel failed to prepare and

file a motion to suppress evidence resulting from Marshall’s alleged false arrest. The

district court denied relief, and Marshall sought a COA in order to appeal to this court,

                                              2
reiterating all of his arguments. The district court denied Marshall’s request for a COA.

                                             II

       Marshall must obtain a COA before he can appeal the denial of his § 2254

motion. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court” unless the petitioner first obtains a COA). Marshall will

receive a COA “only if [he] has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This showing requires “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)

(internal quotation marks omitted). Where, as here, the claims set forth in a federal

habeas petition were adjudicated on the merits in state court proceedings, Congress has

instructed that we may grant habeas relief only where the state court 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). Thus, a “COA may be granted only if reasonable jurists could debate whether

the petitioner might be eligible for habeas relief—i.e., in a case governed by § 2254(d),

whether the state court’s decision on the merits of the petitioner’s constitutional claim

was unreasonable or ran contrary to clearly established federal law.” Dockins, 374 F.3d

                                             3
at 937–38. Here, reasonable jurists could not debate whether the district court correctly

resolved Marshall’s motion; the state court decision does not fall within the narrow

confines of 28 U.S.C. § 2254(d).

       First, the district court correctly determined that the in-court identification of

Marshall by the victim in the robbery did not violate Marshall’s constitutional right to

due process. As reflected in the investigative records submitted by Marshall, and as the

district court noted, the victim initially described the robber as being bald when Marshall

in fact had closely cropped grey hair that had been dyed black. But when presented with

a photo lineup, she immediately and positively identified Marshall as the robber, and she

stood by her identification throughout the trial. Based on the totality of the

circumstances, the OCCA determined that the in-court identification did not violate

Marshall’s due-process rights.

       The Supreme Court has “conclude[d] that reliability is the linchpin in determining

the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114

(1977). Although Marshall’s brief is unclear, we read it broadly to allege that the initial

photo lineup was suggestive, thereby tainting the victim’s later in-court identification.

The OCCA rejected this allegation, finding that “the victim’s identification of Appellant

as the perpetrator of the armed robbery was not based on any improperly suggestive

photographic lineup.” Marshall v. Oklahoma, No. F-2007-815 at *2. Marshall has

provided no evidence to rebut the presumption of correctness afforded the state court’s

finding. 28 U.S.C. § 2254(e)(1) (stating that state court factual findings are entitled to a

                                              4
presumption of correctness).

       Even if we were to assume that the photo lineup was suggestive, under the

Brathwaite framework, 432 U.S. at 114, “the opportunity of the witness to view the

criminal at the time of the crime, the witness’ degree of attention, . . . the level of

certainty demonstrated at the confrontation, and the time between the crime and the

confrontation,” clearly outweigh any potential corrupting effects the photo lineup may

have had. Here, prior to being robbed, the victim closely observed Marshall for

approximately forty-five minutes while he was present in the store. Further, after

Marshall hit her in the head, the victim had an additional opportunity to view Marshall at

close range when he took her to the store’s bathroom and bound her hands, feet, and

neck. Although her initial description of the robber did not closely match Marshall, this

discrepancy was thoroughly vetted during cross examination. She testified that she was

positive that Marshall was the man who robbed her. Thus, based on the totality of the

circumstances, the OCCA’s determination that the subsequent in-court identification did

not violate Marshall’s due process rights is not contrary to clearly established federal law

or based on an unreasonable determination of the facts in light of the evidence presented.

We deny Marshall’s request for a COA on his first argument.

       Second, the district court correctly rejected Marshall’s argument that the evidence

was insufficient to convict him of the crime of robbery. Generally, “it is the

responsibility of the jury—not the court—to decide what conclusions should be drawn

from evidence admitted at trial.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam).

                                               5
“The evidence is sufficient to support a conviction whenever, 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. And a state-court

decision rejecting a sufficiency challenge may not be overturned on federal habeas

unless the decision was objectively unreasonable.” Parker v. Matthews, __ S. Ct. __,

2012 WL 2076341, at *3 (June 11, 2012). This is a “twice deferential standard.” Id.

The evidence in this case—the victim’s identification of Marshall as her attacker,

Marshall’s statements to witnesses and to the police, and the comforter found in

Marshall’s home after the robbery that was at least similar to those taken from the

store—suffices to show that the OCCA’s decision was not objectively unreasonable.1

We deny Marshall’s request for a COA on his second argument.

           Third, as the district court found, Marshall’s argument that his trial counsel

rendered ineffective assistance when she did not investigate and utilize DNA evidence

which was allegedly exculpatory also fails.2 Although Marshall argues that his counsel

       1
         This court has “never clearly settled whether we treat sufficiency of evidence
issues on habeas review as a question of law [, reviewed under 28 U.S.C. § 2254(d)(1),]
or a question of fact [, reviewed under 28 U.S.C. § 2254(d)(2),]. As in many of our recent
cases, however, we need not decide this question here because Petitioner is not entitled to
habeas relief under either standard.” Dockins, 372 F.3d at 939.
       2
         Marshall’s third claim is unexhausted, as Marshall failed to present it to the
OCCA. But rather than analyze the procedural status of this claim, we follow the district
court’s reasoning and analysis and deny the claim on the merits. Marshall v. Rudek, No.
08-CV-0748, 2012 WL 951403, at *11 ( N.D. Okla. Mar. 20, 2012) (citing 28 U.S.C. §
2254(b)(2); Smith v. Mullin, 379 F.3d 919, 927 (10th Cir. 2004) (“We need not determine
the level of deference owed the OCCA’s conclusions as to these various misconduct
                                                                               (continued...)

                                                 6
did not receive the DNA test results prior to trial, the OCCA found that the DNA test

results were provided to defense counsel in advance of trial. Marshall v. Oklahoma, No.

F-2007-815 at *3–4. Marshall has provided no evidence to rebut the presumption

of correctness afforded the state court’s finding. 28 U.S.C. § 2254(e)(1). Further, trial

counsel relied on the lack of inculpatory DNA evidence during her opening argument,

during her cross-examination of a detective in the case, and during her closing argument.

In doing so, trial counsel utilized the DNA evidence in Marshall’s defense and

demonstrated that she had, in fact, received the test results. Thus, we deny Marshall’s

request for a COA on his third argument.

       Finally, Marshall argued that he was denied the effective assistance of counsel

because his trial counsel failed to prepare and file a motion under Franks v. Delaware,

438 U.S. 154 (1978), to suppress evidence resulting from his arrest or, in the alterative,

because his trial counsel failed to adopt his motion asserting false arrest. As the district

court noted, a successful habeas petition based on ineffective assistance of counsel must

demonstrate that the OCCA’s adjudication of this claim was an unreasonable application

of Strickland v. Washington, 466 U.S. 668 (1984). Our review of the OCCA’s decision

on ineffective assistance of counsel claims is “doubly deferential.” Cullen v. Pinholster,

131 S. Ct. 1388, 1403 (2011). Under Strickland’s first prong, a defendant must show


       2
         (...continued)
claims or which [claims] are barred on independent and adequate state grounds. Where
an issue may be more easily and succinctly affirmed on the merits, judicial economy
counsels in favor of such a disposition.”)).

                                              7
that his counsel’s performance was deficient. Strickland, 466 U.S. at 687. Assuming

without deciding that trial counsel’s performance was deficient, we turn to the second

prong. Under Strickland’s second prong, the defendant must also show that the deficient

performance so prejudiced his defense that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. Here, the OCCA held that “the anonymous tip, followed by the

victim’s positive identification [of Marshall as the robber], was sufficient to support the

arrest warrant, [so] trial counsel was not ineffective for failing to challenge the legality

of Appellant’s arrest.” Marshall v. Oklahoma, No. F-2007-815 at *4. This holding was

not contrary to, or an unreasonable application of, federal law as determined by the

Supreme Court, and we deny Marshall’s request for a COA on this claim as well. 28

U.S.C. § 2254(d).

                                             III

       Accordingly, we DENY Marshall’s COA application and DISMISS this matter.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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