                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            OCT 10 2002
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 CHRISTOPHER BALDWIN,

          Petitioner - Appellant,                         No. 02-6042
                                                   (D.C. No. CIV-00-2071-L)
 v.                                                    (W.D. Oklahoma)

 TWYLA SNIDER, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Christopher Baldwin, an inmate appearing through

counsel, seeks a certificate of appealability (“COA”) allowing him to appeal the

district court's order denying relief on his petition for a writ of habeas corpus.

See 28 U.S.C. § 2254. Because Mr. Wright has failed to make “a substantial

showing of the denial of a constitutional right” as required by 28 U.S.C. §

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         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.
2253(c)(2), we deny his request and dismiss the appeal.

      Mr. Baldwin was convicted by a jury in Oklahoma state court of robbery

with a firearm and shooting with intent to kill. He was sentenced to consecutive

imprisonment terms of forty years for the robbery count and forty-two years for

the shooting with intent to kill count. On direct appeal, the Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed.

      Mr. Baldwin then filed a petition for a writ of habeas corpus in federal

district court asserting the same four claims raised before the OCCA: (1)

prosecutorial misconduct; (2) denial of his constitutional right to confront adverse

witnesses; (3) ineffective assistance of trial counsel; and (4) deprivation of due

process from the trial court’s exclusion of rebuttal evidence. The magistrate

judge carefully considered each of these claims and issued a report and

recommendation that the district court deny his petition. After consideration of

Mr. Baldwin’s objections, the district court adopted the magistrate judge’s

recommendation, denied Mr. Baldwin’s petition on the merits and declined to

grant him a COA. Except for the prosecutorial misconduct claim, Mr. Baldwin

now asserts the same issues before this court in seeking a COA.

      In order for this court to grant a COA, Mr. Baldwin must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Where, as here, the district court has rejected the habeas petitioner’s


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constitutional claims on the merits, the petitioner must demonstrate that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      The claims before the district court were presented to the OCCA and were

denied by that court in a summary opinion. As such, the district court could not

properly issue a writ of habeas corpus unless it found that the state court

adjudication resulted in a decision that “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); Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). Further, the fact that the OCCA denied

relief to Mr. Baldwin in a summary opinion has no effect on the deference owed

to the state court’s result. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.

1999). It is against these standards that the district court’s denial of the COA and

the petition must be assessed.

      In an argument that has remained essentially unchanged from the objections

lodged against the magistrate judge’s report and recommendation, Mr. Baldwin

first argues that his constitutional right to confront adverse witnesses was denied

when the trial court limited his ability to show that the State had given

preferential treatment to a key prosecution witness, Robert Perosi. The OCCA

concluded that the trial court had erred in this regard, but nonetheless determined


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that the error was harmless beyond a reasonable doubt. After carefully reviewing

the reasoning of the magistrate judge and the district court, as well as

reexamining petitioner’s argument, we find that Mr. Baldwin’s claim is without

merit. Even assuming Mr. Baldwin’s rights under the Confrontation Clause were

violated by the restriction on cross-examination, we are convinced that the trial

court error would be harmless in that it did not have a “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507

U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)). See also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing

factors relevant to the harmlessness analysis); Crespin v. New Mexico, 144 F.3d

641, 649-50 (10th Cir. 1998).

      Mr. Baldwin next argues that the behavior of his trial counsel denied him

his right to the effective assistance of counsel. While Mr. Baldwin’s brief

continues to focus on the first prong of Strickland v. Washington, 466 U.S. 668,

689-90 (1984), in arguing that his counsel’s performance was deficient, Mr.

Baldwin once again fails to establish the necessary second Strickland prong that

he was prejudiced by the claimed deficiency. See id. at 694 (“The defendant must

show that there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.” (emphasis

added)). After carefully considering each of the three claimed bases of counsel


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deficiency, we are persuaded by the reasoning of the magistrate judge and the

district court regarding the lack of demonstrated prejudice under Strickland.

      Finally, Mr. Baldwin argues precisely as he did below that he was deprived

of due process and a fundamentally fair trial when the trial court refused to allow

certain rebuttal evidence. See Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.

1979). The OCCA specifically found this claim to be “wholly without merit”

since it was Mr. Baldwin’s co-defendant who sought to offer rebuttal testimony,

not Mr. Baldwin. Baldwin v. Oklahoma, Case No. F-98-309, at 2 (Okla. Crim.

App. Sept. 16, 1999). After carefully reviewing Mr. Baldwin’s claim, and in light

of his opportunity to call witnesses in his case-in-chief, we agree with the OCCA,

the magistrate judge and the district court that no trial error occurred regarding

the exclusion of rebuttal evidence that deprived Mr. Baldwin of a fair trial.

      Because none of Mr. Baldwin’s claims suffice to make a substantial

showing of a denial of a constitutional right, we DENY a COA and DISMISS the

appeal.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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