                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                February 27, 2009
                                    TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 ALONZO TONY CAMPBELL,

          Petitioner - Appellant,
                                                         No. 08-5046
 v.                                                (D.C. No. CV-03-214-K)
                                                         (N.D. Okla.)
 RON WARD, Director,

          Respondent - Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Petitioner-Appellant Alonzo Tony Campbell, an Oklahoma state prisoner,

seeks to appeal the federal district court’s denial of his habeas corpus petition.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we hold that no

reasonable jurist could conclude that the district court’s denial was incorrect. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we DENY Mr.


      *
              This Order is not binding precedent, except under the doctrines of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 to honor Mr. Campbell’s request for a decision on
the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore
ordered submitted without oral argument.
Campbell the requisite certificate of appealability (“COA”) and DISMISS his

appeal.

                                   I. Background

      Thirteen bullets riddled a car one evening in Tulsa, Oklahoma. The bullets

were fired from three guns. The car had just pulled into a nightclub parking lot.

Two men were in the car. One of them, Carlton Peters, died; the other was hit by

the gunfire but survived. Mr. Campbell, Erin Silmon, and Brandon Ballard were

arrested in connection with the shootings. Mr. Campbell was tried jointly with

Mr. Silmon in Oklahoma state court. Their trial was severed from Mr. Ballard’s.

A jury convicted both Messers. Campbell and Silmon of first-degree murder and

of shooting with intent to kill.

      The state courts rejected Mr. Campbell’s direct appeal, his application for

postconviction relief, and his appeal from the denial of postconviction relief. Mr.

Campbell then filed a 28 U.S.C. § 2254 petition for habeas corpus relief in federal

district court. The district court ultimately denied Mr. Campbell an evidentiary

hearing, denied relief on his habeas claims, and denied him a COA. Because Mr.

Campbell has not filed a specific request for a COA in this Court, we construe his

notice of appeal to be such a request pursuant to Fed. R. App. P. 22(b)(2) and

10th Cir. R. 22.1(A).

                               II. Standard of Review

      The denial of a petition for federal habeas relief under § 2254 can be

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appealed only if a COA is issued. 28 U.S.C. § 2253(c)(1)(A). A COA may not

issue under § 2253(c)(1) unless “the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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, 529 U.S. at 484 (internal quotation

marks omitted). Our inquiry does not require a “full consideration of the factual

or legal bases adduced in support of the [applicant’s] claims,” but rather “an

overview of the claims . . . and a general assessment of their merits.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Because the district court addressed the

merits of Mr. Campbell’s claims in rejecting his § 2254 petition, we will grant a

COA only if Mr. Campbell demonstrates that “reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Slack, 529 U.S. at 484.

                                  III. Discussion

      Mr. Campbell raises two related arguments, objecting to the alleged: (1)

denial of his Fifth and Sixth Amendment rights due to the trial court’s refusal to

sever his trial from that of Mr. Silmon; and (2) ineffective assistance of counsel




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based upon his trial counsel’s failure to request such a severance. 1 As the district

court explained in its denial of habeas relief, there are problematic questions of

procedural bar pertaining to Mr. Campbell’s claims. Because the application for

COA regarding both of Mr. Campbell’s substantive claims can be denied readily

after considering the merits, we, like the district court, will “exercise [our]

discretion to bypass the procedural issues and reject [his] habeas claim on the

merits.” Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004).

A. Trial Court’s Denial of Severance

      As further explained below, Mr. Campbell’s counsel did not specifically

request a severance from Mr. Silmon’s trial, but his codefendant Mr. Silmon’s

counsel did so several times, both before and during the trial. Each time, the trial

court declined to sever Mr. Campbell’s trial from Mr. Silmon’s.

             Separate trials are not a matter of right where two defendants
             allegedly participated in the same act or transaction giving rise
             to the criminal offense. The decision whether to grant or deny
             a motion to sever trials is within the trial court’s discretion and
             will not be disturbed on appeal absent a showing of an abuse
             of discretion. Denial of a motion to sever is not an abuse of
             discretion unless there is a serious risk that a joint trial [will]
             compromise a specific trial right of one of the defendants, or

      1
              In his pro se habeas corpus petition, Mr. Campbell additionally
asserted a separate claim that his trial attorney had operated under a conflict of
interest with his codefendant’s attorney in contravention of Holloway v. Arkansas,
435 U.S. 475 (1978). Mr. Campbell, now appearing through counsel, has
conceded that his reliance on Holloway was misplaced and does not continue to
assert this claim on appeal. Mr. Campbell does refer, however, to a purported
“procedural strategic” conflict between his trial counsel and Mr. Silmon’s counsel
as additional support for his ineffective assistance claim. Aplt. Opening Br. at 9.

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             prevent the jury from making a reliable judgment about guilt
             or innocence.

                    The district court may order severance if it appears that
             a defendant is prejudiced by a joinder of offenses or of
             defendants. Before exercising its discretion to grant a motion
             to sever, however, the trial court must weigh prejudice to the
             defendant caused by joinder against the obviously important
             considerations of economy and expedition in judicial
             administration. It is not enough for [the defendant] to show
             that severance would have enhanced his chances of acquittal.
             He must, rather, make a strong showing of prejudice. This
             burden is heavy for the defendant to bear as he must show
             more than a better chance of acquittal or a hypothesis of
             prejudice, he must, in fact, show real prejudice.

United States v. Dirden, 38 F.3d 1131, 1140-41 (10th Cir. 1994) (first alteration

in original) (citations and internal quotation marks omitted). “Whether the trial

court erred in denying severance is generally a question of state law that is not

cognizable on federal habeas appeal, for a criminal defendant has no

constitutional right to severance unless there is a strong showing of prejudice

caused by the joint trial.” Cummings v. Evans, 161 F.3d 610, 619 (10th Cir.

1998) (citations omitted).

      Mr. Campbell first argues that the denial of severance was prejudicial to his

defense because it deprived him of his Fifth Amendment right against self-

incrimination. Mr. Campbell asserts that because he was tried with Mr. Silmon,

his decision to testify was not made freely and voluntarily; rather, it was a

necessary action to disassociate himself from the gang-related evidence that

presumably would not have been presented to the jury if Mr. Campbell had been

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tried separately. Mr. Campbell, however, did not raise this Fifth Amendment

argument in his habeas petition to the district court. Generally, we will not

consider issues raised on appeal that were not presented to the district court. See,

e.g., Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720-21 (10th Cir. 1993). We

see no reason to deviate from that practice here. Accordingly, Mr. Campbell’s

Fifth Amendment argument cannot aid him.

      Next, Mr. Campbell argues that he suffered prejudice because the trial

court’s refusal to sever the trials at his codefendant’s counsel’s behest violated

his Sixth Amendment right to a fair trial. According to Mr. Campbell, the failure

to sever Mr. Silmon’s trial from his own resulted in the jury hearing a large

amount of highly prejudicial evidence linking both the shootings and Mr.

Campbell to street gang activity that otherwise would not have been admitted.

      With multiple defendants,

             [s]everance may be necessary if the defenses are so
             antagonistic that they are mutually exclusive. Severance is not
             warranted, however, merely because defense theories conflict
             or because one defendant is attempting to cast blame on the
             other. Mutually antagonistic defenses are not prejudicial per
             se. The defenses truly must be mutually exclusive, such that
             the jury could not believe the core of one defense without
             discounting entirely the core of the other.

Dirden, 38 F.3d at 1141 (citations and internal quotation marks omitted).

      For substantially the same reasons outlined by the district court, we agree

that Mr. Campbell has failed to demonstrate that he suffered prejudice as a result


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of the trial court’s failure to sever his trial from Mr. Silmon’s. The jury heard

Mr. Campbell’s own testimony that he was not a gang member. Mr. Campbell’s

testimony also referred, however, to his interaction with gangs and the fact that

his older brother had been a gang member. Mr. Campbell further testified that

Mr. Parker, the man shot to death at the nightclub, was thought to be the person

who had murdered Mr. Campbell’s older brother. Further, despite Mr.

Campbell’s claim that the codefendants’ defenses were mutually antagonistic, he

fails to demonstrate how his alibi defense created any antagonism or conflict with

the defense of Mr. Silmon, who did not testify. In our view, reasonable jurists

could not debate the district court’s conclusions that Mr. Campbell did not suffer

prejudice from the failure to sever and that he is not entitled to habeas relief on

this claim.

B. Ineffective Assistance of Trial Counsel

      Finally, Mr. Campbell raises the related argument that his trial counsel was

ineffective for failing to request a severance of his trial from Mr. Silmon’s. As

noted above, the numerous requests for severance were all made by Mr. Silmon’s

counsel rather than Mr. Campbell’s. According to Mr. Campbell, there was “a

procedural strategic conflict” of interest between his trial counsel and that of Mr.

Silmon, in that his counsel (unlike Mr. Silmon’s counsel) unreasonably failed to

recognize the prejudicial effect of the “gang related influence” in the case. Aplt.

Opening Br. at 9.

                                          -7-
      In order to prevail on his ineffective assistance of counsel claim, Mr.

Campbell must demonstrate, pursuant to Strickland v. Washington, 466 U.S. 668

(1984), both that his counsel’s performance was deficient, i.e., that it fell below a

standard of objective reasonableness, and that counsel’s deficiencies prejudiced

his defense, “depriving [Mr. Campbell] of a fair trial with a reliable result.”

United States v. Sanders, 372 F.3d 1183, 1185 (10th Cir. 2004).

             Petitioner must overcome the strong presumption that
             counsel’s conduct falls within the wide range of reasonable
             professional assistance, and we are reminded that there are
             countless ways to provide effective assistance of counsel.
             Prejudice is shown by demonstrating that there is a reasonable
             probability that, but for counsel’s unprofessional errors, the
             result of the proceeding would have been different.

Id. (citation and internal quotation marks omitted).

      After reviewing the record, we agree with the district court’s conclusion

that Mr. Campbell has failed to establish a debatable claim of ineffective

assistance of trial counsel. First, a careful review of the record indicates that Mr.

Campbell’s counsel did file a motion for severance from the trial of codefendant

Mr. Ballard, and Mr. Ballard’s trial indeed was conducted separately. The fact

that Mr. Campbell’s counsel did not file such a motion to sever from codefendant

Mr. Silmon suggests a deliberate trial strategy by Mr. Campbell’s counsel rather

than deficient performance. Furthermore, contrary to Mr. Campbell’s suggestion

about a “procedural strategic” conflict of interest between his counsel and Mr.

Silmon’s counsel, Mr. Campbell’s trial counsel filed a pretrial motion in limine in

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an attempt to prevent gang-related evidence from being introduced during

trial—reflecting that counsel in fact recognized the claimed evil that Mr.

Campbell suggests that he overlooked by not filing a motion to sever and that

counsel took affirmative steps to remove that claimed evil from the trial.

      However, even assuming his trial counsel’s performance fell below an

objective standard of reasonableness (which we doubt), the lack of merit in Mr.

Campbell’s substantive Sixth Amendment claim forecloses his argument that his

trial counsel was ineffective for failing to request a severance. More specifically,

because the state court’s failure to sever the trials did not deprive Mr. Campbell

of a fair trial, he necessarily suffered no prejudice from his trial counsel’s failure

to request a severance. Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003);

Castro v. Ward, 138 F.3d 810, 830 (10th Cir. 1998). Thus, Mr. Campbell has not

demonstrated that reasonable jurists would find the district court’s assessment of

his ineffective assistance claim debatable or wrong, and a COA is not warranted.

See Slack, 529 U.S. at 484.

                                   IV. Conclusion

      For the reasons set forth above, we DENY Mr. Campbell a COA and

DISMISS his appeal.

                                                Entered for the Court

                                                Jerome A. Holmes
                                                Circuit Judge


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