                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             May 29, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
TIMOTHY J. HILL,

      Petitioner - Appellant,

v.                                                         No. 18-6019
                                                    (D.C. No. 5:17-CV-00373-D)
JOE M. ALLBAUGH,                                           (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

          ORDER DENYING A CERTIFICATE OF APPEALABILITY*
                  _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Timothy J. Hill, a prisoner in the Oklahoma Department of Corrections,

petitions for a Certificate of Appealability (COA), seeking to challenge the district

court’s denial of his 28 U.S.C. § 2254 petition. We deny the COA.

                                            I

      Around March 2012, Hill’s then-girlfriend, Stacie Lewis, gave birth to a girl,

T.H. On June 5, 2012, when T.H. was three months old, Lewis walked into the

Emergency Room of the Chickasaw Nation Medical Center in Ada, Oklahoma,

seeking medical assistance for T.H. Lewis told the medical center staff that three



      *
         This order is not binding precedent except under the doctrines of law of the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.
days earlier she accidentally bumped T.H.’s head against a doorframe, and she was

concerned that T.H. might still be suffering from the injury.

      At the medical center, Dr. Connie Wilson noticed T.H. was having difficulty

making eye contact and would not grasp a pinkie finger—both abnormal for a three-

month-old. Dr. Wilson ordered a CT scan, after which Dr. Wilson recommended that

T.H. be transported by ambulance to The Children’s Hospital in Oklahoma City. A

paramedic, Lori Morris, treated T.H. during the two-hour ambulance ride, and

noticed that T.H. could not follow a finger or light, and was generally dazed.

      At The Children’s Hospital, doctors diagnosed T.H. with subdural hematomas,

subarachnoid bleeds, damaged brain tissue, and multi-layer retinal hemorrhages

involving both eyes. T.H. also had three broken ribs and two broken bones in her

legs, with the injuries apparently occurring at different times.

      At trial, a child abuse and Shaken Baby Syndrome expert testified that T.H.’s

subdural bleeding included both old and new blood, which indicated her injuries

came from multiple incidents over time. Further, the expert testified that T.H.’s

injuries may have killed 20 to 30 percent of her brain cells. Altogether, the expert

concluded that T.H. had been subjected to “fantastic forces over an ongoing period of

time,” including “multiple shaking incidents.” App. at 395–96.

      The State also presented evidence that T.H. weighed just 8.8 pounds when she

arrived at the medical center, putting her in the bottom 3 percent of body weights for

three-month-olds. In her first three days at The Children’s Hospital, T.H. gained six

ounces—more than double the average weight gain for a three-month-old baby over a

                                            2
three-day period. After she was released from the hospital, T.H. stayed with a foster

mother and continued to gain weight.

                                  Procedural history

      Hill and Lewis both spoke with the Ada Police Department in early June 2012,

in the days following T.H.’s hospitalization. After Hill’s interview, the State of

Oklahoma charged Hill with three felony counts: child abuse by failure to protect,

child abuse by injury, and child neglect. Hill hired an attorney, Blake Bostick, to

defend him. The case went to trial, and a jury found Hill guilty of felony child

neglect and felony child abuse by failure to protect, but acquitted him of felony child

abuse by injury. The court sentenced Hill to a 35-year term of imprisonment on both

counts, to be served consecutively. On direct appeal, with Bostick still representing

Hill, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions.

Thereafter, Hill filed a petition for post-conviction relief in Oklahoma state court.

The state trial court denied the petition, and the OCCA affirmed the denial of the

petition. In April 2017, Hill filed this petition under 28 U.S.C. § 2254. A magistrate

judge recommended that the district court deny the petition. The district court

adopted the recommendation and denied the petition. The district court also denied

Hill’s request for a COA. Hill now seeks a COA from this court.

                                           II

      To obtain a COA, Hill must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied

Hill’s claims on the merits, he “must demonstrate that reasonable jurists would find

                                            3
the district court’s assessment of the constitutional claims debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). As Hill is litigating pro se, we liberally

construe his application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir.

2002).

         Hill seeks a COA based on alleged (i) ineffective assistance of counsel at trial

and on direct appeal, and (ii) insufficient evidence to support his convictions. Hill

raised these issues before the OCCA, which held that none of them were meritorious.

In review of the OCCA’s rulings, we do not ask whether we believe the state court’s

determination was incorrect but rather “whether [the state court’s] determination was

unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S.

465, 473 (2007). We conclude that none of the OCCA’s rulings were unreasonable.

Because there are no debatable issues, a COA is not warranted.

                             Ineffective assistance of counsel

         To establish that Bostick provided ineffective assistance of counsel, Hill must

prove Bostick’s performance was constitutionally deficient and that the deficient

performance prejudiced Hill. See Strickland v. Washington, 466 U.S. 668, 690

(1984). A “deficient” performance is one that falls “outside the wide range of

professionally competent assistance.” Id. “[P]rejudice” occurs when there is “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

         Hill argues Bostick was ineffective in three ways. First, Hill alleges Bostick

was ineffective by not calling Lewis to testify. Second, Hill believes Bostick should

                                             4
have objected to the State’s closing argument and the State’s characterization of the

evidence. And third, Hill contends Bostick should have included a challenge to the

State’s closing argument as an issue on direct appeal. None of these alleged

instances of ineffectiveness merit a COA.

      First, in part because “trial counsel’s informed decision not to call a particular

witness is a tactical decision and thus a matter of discretion for counsel,” Newmiller

v. Raemisch, 877 F.3d 1178, 1198 (10th Cir. 2017), Bostick’s performance was not

deficient simply because he did not call Lewis to testify. To be clear, Bostick

attempted to introduce Lewis’ interview with the Ada Police Department—in lieu of

having Lewis testify live—but the state trial court ruled that the recorded interview

was inadmissible hearsay. See App. at 407. After that, Bostick did not call Lewis for

live testimony.

      Hill argues that if Lewis had testified, she could have stated that she caused

some of T.H.’s injuries by dropping and catching T.H. in the shower, and by

bumping T.H.’s head on the doorframe. However, at her sentencing hearing on July

30, 2013—less than a month before Hill’s trial—Lewis testified that the story about

hitting T.H.’s head on the doorframe did not actually occur in the way she told the

medical professionals at the Ada medical center. App. at 308. In fact, Lewis

indicated that Hill may have been the one holding T.H. when T.H.’s head hit the

doorframe. Id. at 299–308. Lewis also testified that on one occasion Hill was caring

for T.H. by himself when T.H. rolled off the bed. Id. at 299–304.



                                            5
       The prospect of potentially damaging testimony is among the reasons that

“[s]trategic or tactical decisions on the part of counsel are presumed correct unless

they were completely unreasonable, not merely wrong, so that they bear no

relationship to a possible defense strategy.” Moore v. Marr, 254 F.3d 1235, 1239

(10th Cir. 2001) (citations and quotations omitted). Bostick’s decision to not call

Lewis as a witness provides no basis for a claim of deficient performance.1

       Hill also argues Bostick was ineffective during closing arguments because

Bostick did not object when the prosecutor stated:

              [Hill] must present something to you in the form of
              evidence [that Lewis was solely responsible for any abuse
              to T.H.,] and simply showing the conviction for Stacie
              Lewis is not in itself evidence of what [Lewis] did to
              [T.H.].

App. at 389. Hill argues this statement improperly shifted the burden of proof and

required him to prove an element of the crime. Yet, as the magistrate judge noted, it

is not clear whether a prosecutor’s closing argument that identifies deficiencies in the

defense improperly shifts the burden of proof. See App. at 409–10 (citing Sanders v.

State, 358 P.3d 280, 286 (Okla. Crim. App. 2015)); see also United States v.

Rahseparian, 231 F.3d 1267, 1273 (10th Cir. 2000) (“We have consistently held that

a prosecutor may comment on the lack of evidence in a case.”). Even if the statement


       1
         Hill seeks an evidentiary hearing in hopes of having Lewis testify in the way
Hill wanted Lewis to testify at his trial. Aplt. Br. at 12. As the broad sweep of
discretion in trial strategy forecloses Hill’s claim that his trial counsel was ineffective
for not calling Lewis at trial, Hill was not entitled to an evidentiary hearing on the
matter. See United States v. Stine, 719 F. App’x 834 at *3 (10th Cir. 2018).

                                            6
did misstate the State’s burden, the trial court twice clarified for the jury that the

State had the burden of proving Hill’s guilt. App. at 410–12 (citing the jury

instructions). When a court instructs a jury on the proper law, any prior misstatement

will “not override the jury’s instructions on the presumption of innocence and burden

of proof.” Mitchell v. State, 270 P.3d 160, 189 (Okla. Crim. App. 2011).

       Later in the closing argument, the prosecutor stated:

              Look at his statement and consider how he spoke about his
              daughter. He didn’t refer to her as [T.H.] once. He just
              referred to her as “the baby.” These are things that show
              willful or malicious acts to not protect your child.
              ...
              [Lewis is] working 11 hours a day. She’s convicted of
              child neglect. How about Mr. Hill? Is he—is he
              responsible [for] child neglect? Mr. Hill [lived in] the
              same house. He’s not working. Stacie is putting in all the
              hours. That’s child neglect. That’s willful and that’s
              malicious.

App. at 434. Hill argues that this misstated the proper definition of willful and

malicious conduct. The record belies this point and indicates the prosecutor was

merely exercising his “right to discuss fully from [his] standpoint the evidence and

the inferences and deductions arising from it.” Kennamer v. State, 57 P.2d 646, 664

(Okla. Crim. App. 1936); see also United States v. Gomez-Olivas, 897 F.2d 500, 503

(10th Cir. 1990) (noting “the prosecutor is allowed considerable latitude in

responding to defense arguments, commenting on the evidence, and arguing

inferences therefrom”). And even if the prosecutor was misstating the law, the trial

court cured any confusion by subsequently reciting for the jury the proper definitions

of willful and malicious. See App. at 412.

                                             7
       Finally, Hill argues that Bostick was ineffective for failing to object when the

prosecutor in closing argument stated the “evidence shows [T.H.] wasn’t getting

food.” Id. But Dr. Wilson testified that three-month-old T.H. weighed only 8.8

pounds when she arrived at the medical center, and the State’s expert testified T.H.

exhibited failure to thrive symptoms. The prosecutor was free to present his view of

that evidence and offer potential inferences therefrom. See Kennamer, 57 P.2d at

664. Bostick was not deficient in declining to object to the closing argument, and

any failure to object did not prejudice Hill.2 See Hanson v. Sherrod, 797 F.3d 810,

837 (10th Cir. 2015).

                               Sufficiency of the evidence

       Under the Due Process Clause, the evidence against a criminal defendant must

be strong enough that, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original). As applied, the evidence must be sufficient to convict Hill of

both felony child abuse by failure to protect and felony child neglect. Specifically, to

convict Hill of felony child abuse by failure to protect, the State had to prove that

Hill: (i) was responsible for T.H.’s health, safety or welfare; and (ii) willfully or




       2
         To the extent Hill argues Bostick was ineffective by not raising the issues
with the prosecutors’ closing argument on direct appeal that argument fails, given
that the closing was either not improper or cured by the trial court’s jury instructions.
                                            8
maliciously;3 (iii) failed to protect T.H. from harm; (iv) while T.H. was under the age

of 18. See Okla. Stat. tit. 21, § 843.5(A). To convict Hill of felony child neglect, the

State had to prove that Hill: (i) was responsible for T.H.’s health, safety, or welfare;

and (ii) willfully or maliciously; (iii) failed to provide T.H. with; (iv) adequate

nurturance, food, and medical care; (v) while T.H. was under the age of 18. See

Okla. Stat. tit. 21, § 843.5(C).

       Hill made an insufficiency of the evidence argument on direct appeal. The

OCCA held that “[w]here, as here, defendants have exclusive care of a child during a

period where the child was injured, and the explanation of events is incompatible

with the medical evidence, sufficient evidence supports the convictions.” App. at

102. A federal habeas court can only “overturn a state court decision rejecting a

sufficiency of the evidence challenge . . . if the state court decision was objectively

unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quotation omitted).

       Here, the OCCA’s conclusion was not objectively unreasonable. T.H. arrived

at the medical center on June 5, 2012, with signs of failure to thrive, two broken

bones in her leg, three broken ribs, severe head trauma, and multi-layer retinal

hemorrhages involving both eyes. The failure to thrive and myriad injuries occurred

while Hill was a primary caretaker for T.H. That the OCCA was reasonable in



       3
         “The term ‘willfully’ . . . implies simply a purpose or willingness to commit
the act or the omission referred to[, and] . . . does not require any intent to violate
law, or to injure another, or to acquire any advantage.” Okla. Stat. tit. 21, § 92. “The
terms ‘malice’ and ‘maliciously’ . . . import a wish to vex, annoy or injure another
person.” Okla. Stat. tit. 21, § 95.
                                            9
concluding “sufficient evidence supports the convictions,” App. at 102, was not

“debatable,” Slack, 529 U.S. at 484.

                                         III

      We therefore DENY Hill’s application for a COA and dismiss this matter.


                                          Entered for the Court


                                          Mary Beck Briscoe
                                          Circuit Judge




                                         10
