                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 TO N Y WELC H,

                 Petitioner-A ppellant,                  No. 06-6205
          v.                                            (W .D. of Okla.)
 RON W ARD, Director, Oklahoma                    (D.C. No. CIV-05-274-T)
 Department of Corrections,

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Tony W elch seeks a certificate of appealability (COA) to challenge the

district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

W e will issue a CO A “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set




      *
         This order and judgment is not binding precedent except under the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.
forth by the magistrate judge and the district court, we find that W elch has failed

to make the requisite showing for a COA and therefore DENY his request.

                                     I. Analysis

      Tony W elch was charged in the District Court of Oklahoma County,

Oklahoma w ith one count of First Degree Burglary and one count of Peeping

Tom, after two or more prior felonies. He w as sentenced to thirty years

imprisonment for the burglary conviction and one year in county jail plus a $500

fine for the Peeping Tom conviction, with the sentences to be served

concurrently. O n appeal, the O klahoma Court of Criminal Appeals (OCCA)

affirmed W elch’s convictions, but found the trial judge committed plain error by

incorrectly instructing the jury on the range of punishment for Peeping Tom.

Since Welch had already served his concurrent one-year sentence for Peeping

Tom, the OCCA was only able to vacate the $500 fine.

      In his habeas petition seeking relief from the burglary conviction, W elch

has raised three grounds for relief: (1) ineffective assistance of trial and appellate

counsel for failing to challenge the state trial court’s sua sponte ruling that

W elch’s prior convictions, which were over ten years old, were admissible for

purposes of impeachment (see Okla. Stat. tit. 12, § 2609(b)(2001)); (2) ineffective

assistance of trial and appellate counsel for failing to challenge the trial court’s

improper commentary regarding audiotape evidence; and finally (3) ineffective

assistance of appellate counsel for failing to include the prior two substantive

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issues in allegations of ineffective assistance of trial counsel and cumulative error

during the direct appeal. The magistrate judge found, and W elch appears to

recognize, that the ineffective assistance of trial counsel claims are procedurally

barred except as underlying predicates for his ineffective assistance of appellate

counsel claims.

      Only one issue needs further discussion. The ineffective assistance of

appellate counsel claims were reviewed collaterally in the District Court of

Oklahoma County. The reviewing judge, however, improperly referenced an

amendment to Oklahoma law that did not apply at the time of W elch’s trial in

finding evidence of convictions older than ten years could be used to impeach

W elch. On appeal in state court, the OCCA did not correct this mistake. But the

OCCA properly identified Strickland v. Washington, 466 U.S. 668 (1984), as the

law governing ineffective counsel claims. It then noted that Strickland requires

both a showing of (1) deficiency by counsel, and (2) prejudice resulting from

counsel’s deficiency. Addressing all of the alleged ineffective appellate counsel

claims, the OCCA concluded that nothing in the appeal record indicated “the

results in [W elch’s] trial would have been different had these alleged errors not

occurred.” Exhibit 8. W elch contends this conclusory finding is not entitled to

deference.

      Still, the magistrate judge and district court both carefully reviewed the

record and agreed with the OCCA’s findings. The magistrate judge found strong

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evidence of guilt based on the record, such that W elch could not “show a

reasonable probability that he w ould have prevailed” had the other alleged errors

not been made. M agistrate Judge’s Report & Recommendation at 17, 20. In

particular, the magistrate judge noted that W elch admitted he climbed onto a stool

and peered into the window of a woman getting ready for work. He admitted

lifting the w indow and his arm entering the apartment. Finally, contradictory

testimony left a jury free to question W elch’s credibility regarding the intent

behind his actions. 1 [M agistrate Judge’s Report & Recommendation at 14–17; see

also Exhibit 11.] W e agree with the review conducted by the magistrate judge

and the district court.

      In an appeal of a federal habeas petition, we review a district court’s

findings of fact for clear error and its conclusions of law de novo. Robinson v.

Golder, 443 F.3d 718, 720 (10th Cir. 2006). Our review in this case is further

limited: we grant habeas on an underlying state court decision only if the 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). Because the OCCA properly identified the test from

Strickland as controlling, we apply the “unreasonable application” test, which

requires a finding that “most reasonable jurists exercising their independent

      1
        The crime of burglary requires proof that the perpetrator intended to
commit a crime after breaking and entering a “dwelling house.” O kla. Stat. tit.
21, § 1431.

                                          -4-
judgment would conclude the state court misapplied Supreme Court law. It is not

enough that the decision is clearly wrong or that [we] would have reached a

contrary decision.” M aynard v. Boone, 468 F.3d 665, 671 (10th Cir. 2006). Only

“the most serious misapplications of Supreme Court precedent” receive relief

under § 2254. Id.

      Given the analysis of the magistrate judge and the district court, and our

own review of the factual record, we cannot conclude that the OCCA was clearly

wrong in its application of Strickland to appellate counsel’s alleged errors. As a

grant of habeas requires a finding even greater than clear error, see M aynard, 468

F.3d at 670, W elch is not entitled to relief.

                                    II. Conclusion

      For the reasons above we DENY W elch’s application for a COA and

DISM ISS this appeal.

                                                 Entered for the Court,

                                                 Timothy M . Tymkovich
                                                 Circuit Judge




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