FILED
United States Court of Appeals
Tenth Circuit
March 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
WILLARD EUGENE O’NEAL, JR.,
Petitioner-Appellant,
v. No. 10-5093
(D.C. No. 4:06-CV-00610-CVE-PJC)
GREG PROVINCE, Warden, (N.D. Okla.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.
Willard Eugene O’Neal, Jr., was convicted in Oklahoma state court of
first-degree murder and shooting with intent to kill. Proceeding pro se, he seeks a
certificate of appealability (COA) to challenge the district court’s order denying
his 28 U.S.C. § 2254 petition for habeas relief. 1 We deny the request for a COA
for substantially the same reasons identified by the district court, and we dismiss
this appeal.
1
Because O’Neal is proceeding pro se, we construe his filings liberally. See
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
B ACKGROUND
Bruce Chamberlain owned a nightclub in Tulsa, Oklahoma. In December
2001, he and one of his employees, Gildardo Rueda, were robbed and shot one
night by two masked men in the parking lot. Chamberlain died. Although Rueda
survived, he could not identify the men.
Seven months later, a family recreating at nearby Lake Oolagah found a
pistol wrapped in a black ski mask in the water. Police compared the cartridge
casings found at the Chamberlain murder scene to those test fired from the pistol,
and determined they matched. They eventually traced the pistol to Charity
Owens.
Owens told police that on the night of the shootings, her former boyfriend,
O’Neal, arrived late at her apartment with an unidentified man. O’Neal told her
that “something had gone bad and they needed to get rid of some stuff” in a rural
location. R., Vol. 1 at 195 (quotation marks omitted). Owens got in a car with
them and led them to Lake Oolagah. Along the way, O’Neal talked with the other
man about shooting Chamberlain and Rueda. At the lake, O’Neal threw two items
into the water, one of which was wrapped in something dark. While returning to
Tulsa, O’Neal threatened to kill Owens if she told anyone about the crimes.
Police arrested O’Neal and charged him with first-degree murder and
shooting with intent to kill, both after multiple prior felony convictions. At the
preliminary hearing, Owens testified about the trip to Lake Oolagah and what was
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said along the way. But by the time of O’Neal’s trial, Owens had disappeared,
prompting the State to use her preliminary-hearing testimony. The State also
offered evidence that O’Neal had been involved in a robbery of the nightclub one
month before the shootings, had expressed disappointment with the proceeds, and
had asked a bouncer to help him create an alibi for the night of the shootings.
The jury returned guilty verdicts, and the trial judge gave O’Neal two
consecutive life sentences, one of which lacked the possibility of parole. In 2005,
the Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and
sentences, and later affirmed the state district court’s denial of post-conviction
relief.
O’Neal then filed a petition for federal habeas relief, arguing that the trial
court had improperly admitted Owens’s preliminary-hearing testimony and
evidence of the nightclub’s prior robbery. O’Neal also claimed ineffective
assistance of trial and appellate counsel. The district court denied the petition.
O’Neal unsuccessfully sought reconsideration and a COA before turning to this
court.
D ISCUSSION
I. Standard of Review
A COA is a jurisdictional prerequisite to appealing the denial of a habeas
petition. See 28 U.S.C. § 2253(c); Allen v. Zavaras, 568 F.3d 1197, 1199
(10th Cir. 2009). “We will issue a COA only if the applicant has made a
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substantial showing of the denial of a constitutional right.” Allen, 568 F.3d
at 1199 (quotation omitted). “To make such a showing, an applicant must
demonstrate 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.” Id.
(quotation omitted).
When a state court has adjudicated a claim on the merits, the deferential
standard of review mandated by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) must be incorporated into our consideration of the request
for a COA. Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir. 2007). Habeas
relief is available under AEDPA only if the state court’s 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)(1), (2).
II. Confrontation Clause 2
O’Neal first challenges the admission of Owens’s preliminary-hearing
testimony. The OCCA determined that the testimony was properly admitted
because (1) the State reasonably and diligently tried to locate her by issuing a
2
The Sixth Amendment’s Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI.
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material-witness warrant, contacting her friends and family members, and placing
an alert throughout local media; and (2) O’Neal’s counsel cross-examined her at
the hearing.
O’Neal contends that Owens’s testimony should have been excluded
because she deliberately avoided testifying at trial, because a preliminary hearing
provides less of an opportunity for cross-examination than a trial, and because her
testimony related a statement of the unidentified, non-testifying accomplice. The
federal district court rejected those arguments, and concluded that the OCCA
reasonably applied Crawford v. Washington’s holding that the admission of
testimonial hearsay evidence from a proceeding such as a preliminary hearing
requires witness unavailability and a prior opportunity for cross-examination.
541 U.S. 36, 68 (2004). The district court aptly noted that this test focuses on the
State’s efforts in securing the witness’s presence at trial, not on the witness’s
efforts in evading trial. Further, under Crawford, a preliminary hearing affords
sufficient opportunity for cross-examination, see id., and statements made in
furtherance of a conspiracy do not implicate the Confrontation Clause because
they are not testimonial, see id. at 56.
We conclude that the district court’s resolution of O’Neal’s
Confrontation-Clause challenge is not debatable.
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III. Evidence of the Prior Robbery
O’Neal argues that the admission of evidence showing his involvement in
the prior robbery of the nightclub violated his due-process rights because there
was insufficient evidence of the robbery. The OCCA determined that the trial
court properly admitted the evidence after holding a hearing and ruling that the
evidence tended to show “O’Neal’s motive, intent and plan to commit another
robbery at the same site.” R., Vol. 1 at 199.
The district court rejected O’Neal’s due-process argument, noting that
federal habeas review of a state’s application of its evidentiary rules extends only
to assessing the fundamental fairness of the defendant’s trial. See Knighton v.
Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002). In concluding that the admission
of the prior robbery evidence did not deny O’Neal a fair trial, the district court
observed that three witnesses testified about the prior robbery, it was highly
probative of O’Neal’s intent, motive, and plan to again rob the nightclub, and the
jury was instructed to not consider the evidence as proof of guilt or innocence.
We conclude that the district court’s resolution of this issue is not
debatable. Evidence of the prior robbery did not deny O’Neal a fair trial.
IV. Ineffective Assistance of Counsel
To establish ineffective assistance, a petitioner must show that counsel
performed deficiently, and that the deficient performance so prejudiced the
defense “that there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
O’Neal contends that his trial counsel provided ineffective assistance by
(1) filing a petition to compel his presence at trial without the presence of Owens;
(2) not retaining an expert to challenge the State’s ballistic evidence; (3) not
objecting at the preliminary hearing to Owens’s testimony recounting the
accomplice’s statement; (4) not requesting a jury instruction that his conviction
would require him to serve 85% of any sentence before becoming eligible for
parole; and (5) not calling alibi witness Lois Snyder. O’Neal also contends that
his appellate counsel was ineffective in failing to raise these points on direct
appeal. In state post-conviction proceedings, the OCCA cited Strickland, and
held that neither trial nor appellate counsel performed deficiently or prejudiced
the defense.
The federal district court addressed and rejected each area of purported
ineffective assistance. Regarding trial counsel’s efforts to gain O’Neal’s
participation in his own trial, the district court determined that once it was clear
that the trial court would no longer postpone the trial due to Owens’s absence,
defense counsel acted appropriately to ensure that O’Neal did not waive his right
to attend trial. We agree with the district court that counsel did not perform
deficiently in protecting his client’s right to attend trial.
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As for defense counsel’s failure to retain a ballistic expert, the district court
noted that the State’s expert acknowledged that comparing the bullets used at the
crime scene to bullets test fired from the pistol was inconclusive. Thus, calling
an expert to establish that point was unnecessary. 3
Turning to O’Neal’s argument that counsel should have objected to
Owens’s testimony about what O’Neal’s accomplice said during the drive to
Lake Oolagah, the district court correctly noted that the accomplice’s statements
were admissible non-hearsay. See Okla. Stat. Ann. tit. 12, § 2801(B)(2)(e).
Consequently, failing to object was not deficient performance.
Regarding counsel’s failure to request a jury instruction about Oklahoma’s
85% rule, the district court correctly observed that there is no federal requirement
for instructing jurors about parole eligibility in a non-capital case, and that when
O’Neal was tried, Oklahoma law did not require such an instruction. See
Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (holding “that where the
[capital] defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible”); Anderson v. State, 130 P.3d
273, 283 (Okla. Crim. App. 2006) (stating that “[a] trial court’s failure to instruct
3
While O’Neal now argues that an expert could have been called to opine
that the bullet casings did not match, that was not O’Neal’s argument in the
habeas petition. Consequently, that argument is waived. See Parker v. Scott,
394 F.3d 1302, 1307 (10th Cir. 2005).
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on the 85% Rule in [prior] cases . . . will not be grounds for reversal”). Thus,
failure to object was not deficient performance.
Finally, the district court determined that Snyder’s alibi testimony would
have merely been cumulative of the alibi witness who did testify for O’Neal.
Further, neither that testimony nor Snyder’s anticipated testimony would have
foreclosed O’Neal’s possible involvement in the shootings. Consequently, even if
counsel performed deficiently in failing to call Snyder as a corroborating alibi
witness, we are not convinced that there is a reasonable probability it affected the
trial’s outcome.
We conclude that reasonable jurists could not debate the district
court’s determination that the OCCA did not unreasonably apply Strickland
in rejecting O’Neal’s ineffective-assistance-of-trial-counsel claims. Nor could
reasonable jurists debate the district court’s ancillary determination that
appellate counsel was not ineffective in failing to argue these meritless
ineffective-assistance-of-trial-counsel claims.
C ONCLUSION
After reviewing the application for a COA, the record, the district court’s
orders, and the applicable law, we conclude that O’Neal has failed to meet the
standard for issuance of a COA. Accordingly, for substantially the same reasons
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stated in the district court’s order denying habeas relief, filed June 1, 2010, we
DENY the request for a COA and DISMISS this appeal.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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