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

                           FOR THE TENTH CIRCUIT                          July 7, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
BILLY GENE MARSHALL,

             Petitioner-Appellant,

v.                                                         No. 13-5116
                                              (D.C. No. 4:10-CV-00436-GKF-TLW)
JAMES RUDEK, Warden,                                       (N.D. Okla.)

             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.


      Billy Gene Marshall is an Oklahoma state prisoner serving consecutive life

sentences for first-degree murder and first-degree robbery. Proceeding pro se, he

now seeks a certificate of appealability (COA) to appeal the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss the appeal.

                                     BACKGROUND

      On June 14, 2006, police found seventy-one year old Alonzo Tibbs, Jr. beaten

to death in his bedroom. He had suffered twelve blows to the head from a blunt

instrument, “consistent with being attacked with a hammer.” Marshall v. State,

*
       This order is not binding precedent, except under the doctrines of law of the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.
232 P.3d 467, 472 (Okla. Crim. App. 2010). There was a large amount of blood

spattered throughout the room, and Mr. Tibbs’ wallet was missing.

      On the day of the murder, an arrest warrant had been issued for Mr. Marshall

for robbing a local store and attacking the store clerk with a hammer. Based on the

similarities between the attacks on the store clerk and Mr. Tibbs, police arrested

Mr. Marshall the next day for Mr. Tibbs’ murder.

      Mr. Marshall’s girlfriend spoke to police. She told them that she and

Mr. Marshall used to live near Mr. Tibbs and that Mr. Marshall had borrowed money

from him. She also said that on the day of the murder, Mr. Marshall left their home

dressed in a t-shirt and jeans and he returned wearing shorts and a different shirt.

      Continuing their investigation, police searched a home that Mr. Marshall and

his girlfriend had been evicted from a month before the murder. Inside, they found

bloody clothes wrapped in a sheet and placed in a trash can. One of the articles of

bloody clothing was a pair of jeans, and in a pocket was Mr. Tibbs’ wallet.

Mr. Marshall’s girlfriend identified the jeans as “just like” jeans Mr. Marshall had

bought from Walmart. R., Vol. II at 1299. Police also found a small hammer in a

bedroom closet.

      When questioned by police, Mr. Marshall said he went by Mr. Tibbs’ home the

morning before the murder, saw Mr. Tibbs washing his car, and then met a relative

for a morning of gutter cleaning. But according to the relative, he met with




                                          -2-
Mr. Marshall for only about twenty minutes, and Mr. Marshall did not clean any

gutters.

       At trial on charges of first-degree murder and first-degree robbery, the Tulsa

forensic laboratory’s DNA manager, Dr. Valerie Fuller, who had run DNA tests on

the bloody clothing, was unavailable to testify. Consequently, a forensic DNA

examiner who had reviewed Dr. Fuller’s work recounted her findings. Specifically,

the examiner testified that DNA from the blood on Mr. Marshall’s jeans matched

Mr. Tibbs and Mr. Marshall.

       Mr. Marshall did not testify. The jury returned a guilty verdict, and he was

sentenced to two consecutive life-imprisonment terms. The Oklahoma Court of

Criminal Appeals (OCCA) found that the trial court erred by allowing the substitute

DNA testimony, but it found the error harmless and it affirmed Mr. Marshall’s

convictions and sentences.

       In his district court habeas petition, Mr. Marshall argued that (1) admission of

the substitute DNA evidence was harmful constitutional error; (2) admission of

prior-crimes evidence deprived him of a fair trial; and (3) trial counsel was

ineffective. The district court denied the petition and declined to issue a COA.

                                     DISCUSSION

                               I. Standards of Review

       A COA is available only if the applicant makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires a showing


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“that reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” United States v. Taylor, 454 F.3d 1075, 1078

(10th Cir. 2006) (internal quotation marks omitted).

      The Antiterrorism and Effective Death Penalty Act (AEDPA) further

constrains our review. Under AEDPA,

      when a state court has reviewed a claim on its merits, federal habeas
      relief may be granted only if the state court’s decision (1) was contrary
      to or involved an unreasonable application of clearly established Federal
      law, or (2) was based upon an unreasonable determination of the facts in
      light of the evidence presented at trial.

Howell v. Trammell, 728 F.3d 1202, 1212 (10th Cir. 2013) (internal quotation marks

omitted). But “[w]hen the state courts have not addressed the merits of a specific

constitutional claim, . . . there is no adjudication of that claim and hence we review

the federal district court’s legal determinations de novo and its factual findings for

clear error.” Le v. Mullin, 311 F.3d 1002, 1010 (10th Cir. 2002) (per curiam).

      Finally, “[w]hile we liberally construe [Mr. Marshall’s] pro se filings, we will

not assume the role of advocate.” United States v. Parker, 720 F.3d 781, 784 n.1

(10th Cir. 2013) (internal quotation marks omitted).

                              II. Confrontation Clause

      The Confrontation Clause guarantees an accused the right “to be confronted

with the witnesses against him.” U.S. Const. amend. VI. The OCCA held that

Mr. Marshall’s “rights under the Confrontation Clause were violated as he was


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denied the opportunity to confront and cross-examine Dr. Fuller in order to test her

competence and the accuracy of her [DNA] findings.” Marshall, 232 P.3d at 475.

But the OCCA found the error harmless, because even without the DNA evidence,

there was overwhelming evidence of Mr. Marshall’s guilt.

       The district court agreed that Mr. Marshall’s confrontation rights were

violated. It then examined the evidence and concluded that the erroneous admission

of the DNA evidence did not have a substantial and injurious effect on the jury’s

verdicts.1

       Mr. Marshall argues that the district court applied the wrong harmlessness

standard of review. He contends that the proper standard requires the reviewing

court to determine “beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967).

       While Chapman applies “[i]n a direct review of a state court criminal

judgment, . . . the more forgiving standard first articulated in Brecht v. Abrahamson,”

applies “in a collateral review of a state court’s criminal judgment.” Lockett v.

Trammel, 711 F.3d 1218, 1232 (10th Cir. 2013) (internal quotation marks omitted).

In reviewing Mr. Marshall’s collateral attack on his state court criminal convictions,

the district court applied Brecht, which deems an error “harmless unless it had a

substantial and injurious effect or influence in determining the jury’s verdict.” Id.


1
       We assume, without deciding, that Mr. Marshall’s confrontation right were
violated by the substitute DNA testimony.


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“[A] substantial and injurious effect exists when the court finds itself in grave doubt

about the effect of the error on the jury’s verdict.” Bland v. Sirmons, 459 F.3d 999,

1009 (10th Cir. 2006) (internal quotation marks omitted).

      Mr. Marshall fails to identify any aspect of the district court’s Brecht analysis

that is debatable. As the district court observed, admission of the prohibited DNA

evidence could have had little effect on either the murder or robbery conviction given

the overwhelming non-DNA evidence of his guilt. Indeed, among other things,

police found Mr. Tibbs’ wallet in bloodied jeans that were “just like” a pair owned by

Mr. Marshall and they were found inside a home that Mr. Marshall had recently

occupied. R., Vol. II at 1299. Further, Mr. Tibbs was bludgeoned to death with a

hammer-like instrument, and Mr. Marshall had been identified as the

hammer-wielding assailant in a prior crime. We have no grave doubt that admission

of the DNA evidence was harmless.

                     III. Evidence of Prior Robbery & Assault

      Under Oklahoma law, “evidence of other crimes is admissible where it tends to

establish absence of mistake or accident, common scheme or plan, motive,

opportunity, intent, preparation, knowledge and identity.” Lott v. State, 98 P.3d 318,

334 (Okla. Crim. App. 2004). The OCCA determined that Mr. Marshall’s robbery

and assault on the store clerk with a hammer was “probative of the identity of

Mr. Tibbs[’] assailant as it tended to prove that it was [Mr. Marshall] who beat

Mr. Tibbs to death with a hammer.” Marshall, 232 P.3d at 477.


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      Habeas relief is available to “disturb a state court’s admission of evidence of

prior crimes, wrongs or acts” only if “the probative value of such evidence is so

greatly outweighed by the prejudice flowing from its admission that the admission

denies defendant due process of law.” Knighton v. Mullin, 293 F.3d 1165, 1171

(10th Cir. 2002) (internal quotation marks omitted). The district court concluded that

the OCCA’s rejection of Mr. Marshall’s claim was not unreasonable.

      Mr. Marshall has failed to show how the district court’s decision is debatable.

He maintains that the store clerk’s identification was unreliable because her

description of the attacker did not entirely match him. But she picked him out of a

photographic line-up and she identified him during the trial in that case as her

attacker. There was strong probative value in the evidence that Mr. Marshall had

used a hammer in a robbery and assault committed only two weeks before and five

miles from the robbery and murder of Mr. Tibbs. Further, the trial court instructed

the jury that the evidence “was not to be considered as proof of guilt or innocence of

the charged offense.” Marshall, 232 P.3d at 477. We conclude that the prejudicial

effect of the other-crimes evidence did not so greatly outweigh its probative value as

to deny Mr. Tibbs “the fundamental fairness that is the essence of due process.”

Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002).




                                          -7-
                       IV. Ineffective Assistance of Counsel

      Under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), an

ineffective-assistance-of-counsel claim requires deficient performance and resulting

prejudice. “[W]hen assessing a state prisoner’s ineffective-assistance-of-counsel

claims on habeas review, we defer to the state court’s determination that counsel’s

performance was not deficient and, further, defer to the attorney’s decision in how to

best represent a client.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)

(brackets and internal quotation marks omitted).

                           A. Search-Warrant Affidavit

      Mr. Marshall first contends that trial counsel was ineffective by not

cross-examining the detective who submitted an affidavit in support of a search

warrant for Mr. Marshall’s car. In preparing the affidavit, the detective reported that

the girlfriend had said the pants Mr. Marshall wore on the day of the murder “were

crumpled up in the backseat of his [car].” R., Vol. I at 195. Mr. Marshall claimed on

direct appeal that defense counsel should have established through cross-examination

that he “certainly did not wear the pants” found in the trash can of his former home

because they were in the car. Id. at 196.

      The OCCA failed to address Mr. Marshall’s argument. The district court

reviewed the trial testimony and noted that defense counsel had cross-examined

Mr. Marshall’s girlfriend about whether she had told detectives that the jeans

Mr. Marshall wore on the day of the murder were in his car. The girlfriend answered


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“[n]o,” and defense counsel moved on with her cross-examination. R., Vol. II at

1330. Thus, the district court concluded that Mr. Marshall did not receive ineffective

assistance, as defense counsel had attempted to expose the inconsistency about where

Mr. Marshall’s pants from the day of the murder ended up.

       Because the OCCA did not address Mr. Marshall’s claim, the OCCA’s

decision is not entitled to AEDPA deference. See Le, 311 F.3d at 1010-11 (“When

the state courts have not addressed the merits of a specific constitutional claim, . . .

we review the federal district court’s legal determinations de novo and its factual

findings for clear error.”). Nevertheless, the district court’s rejection of the claim is

not debatable.

       Specifically, defense counsel did not perform deficiently because she in fact

attempted to establish that Mr. Marshall’s pants worn on the day of the murder were

in his car, rather than the trash can. And Mr. Marshall has failed to explain how

defense counsel counsel acted unreasonably by choosing to pursue that theory on

cross-examination with his girlfriend—who purportedly made the statement—rather

than the detective. “To be deficient, the performance must be outside the wide range

of professionally competent assistance. In other words, it must have been completely

unreasonable, not merely wrong.” Byrd, 645 F.3d at 1168 (internal quotation marks

omitted).

       Moreover, Mr. Marshall has not adequately explained how the presence of a

pair of his jeans in the car necessarily negates the presence of a pair of his jeans in


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the trash. The testimony at trial showed that he had three pairs of jeans, two of which

were like the jeans he was wearing when he left home several hours before

Mr. Tibbs’ murder. See R., Vol. II at 1301, 1306. Thus, Mr. Marshall has also failed

to show prejudice from defense counsel’s performance.

                                 B. False Testimony

      Mr. Marshall next argues that defense counsel was ineffective because she did

not object to purportedly false testimony from (1) his girlfriend that the water at their

former home was turned off; and (2) Mr. Tibbs’ neighbor that the neighbor heard a

dog barking shortly after noon on the day of the murder. Mr. Marshall also argues

that defense counsel should have objected to the lack of any pretrial discovery

concerning the neighbor’s testimony. The OCCA rejected all aspects of

Mr. Marshall’s arguments because he failed to show how any of the testimony was

false or that there had been any discovery violation.

      The district court determined that Mr. Marshall had failed to show how the

OCCA unreasonably applied Strickland in rejecting his arguments. We agree with

the district court. Mr. Marshall offers nothing to support his arguments that there

was any false testimony or a discovery violation; nor does he coherently address how

the testimony or lack of discovery actually prejudiced his defense.




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          C. Failure to Object to Evidence Found at the Former Home

      Finally, Mr. Marshall asserts that defense counsel was ineffective because she

failed to object at trial to the evidence seized from his former home. The OCCA

rejected the assertion, observing that defense counsel had moved before trial to

suppress the evidence, albeit unsuccessfully, and that the search of the home was

lawful. Consequently, the OCCA held that counsel was not “ineffective for failing to

raise a second objection to the admission of the seized evidence.” Marshall,

232 P.3d at 482.

      The district court determined that, because habeas review of any

search-and-seizure issue was precluded by Stone v. Powell, 428 U.S. 465, 481-82

(1976), Mr. Marshall could not show prejudice from defense counsel’s failure to

object at trial. Thus, the district court concluded that Mr. Marshall had not

demonstrated that the OCCA unreasonably applied Strickland.

      But the Supreme Court in Kimmelman v. Morrison held that Stone does not

block consideration of the search-and-seizure component of an ineffective-assistance

claim. See 477 U.S. 365, 382-83 (1986) (“[W]e reject petitioners’ argument that

Stone’s restriction on federal habeas review of Fourth Amendment claims should be

extended to Sixth Amendment ineffective-assistance-of-counsel claims which are

founded primarily on incompetent representation with respect to a Fourth

Amendment issue.”). Nevertheless, to prevail on such a hybrid Sixth and Fourth

Amendment claim, Mr. Marshall must show that defense counsel performed


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deficiently by not renewing an objection to the evidence and that he suffered

prejudice, which requires a “show[ing] both that his Fourth Amendment claim

challenging the arrest warrant is meritorious and that a reasonable probability exists

that the verdict would have been different absent the excludable evidence.” Hooper

v. Mullin, 314 F.3d 1162, 1175 (10th Cir. 2002).

      Mr. Marshall has not satisfied these requirements. As the OCCA held,

Mr. Marshall lacked standing to contest the search, and the information in the

search-warrant affidavit “was more than sufficient to support the search.” Marshall,

232 P.3d at 479. Mr. Marshall seems to suggest that these holdings are unreasonable

because he was on the lease agreement to his former home and because detectives

may have searched the home before obtaining a warrant “to look for potential

dangerous person(s).” Aplt. Br. at 35. But it is well established that an eviction

terminates any reasonable expectation of privacy in a dwelling, and thus, a former

occupant lacks standing to assert a Fourth Amendment challenge. See United States

v. Curlin, 638 F.3d 562, 565-66 (7th Cir. 2011) (collecting cases). And even if

detectives had searched the home before obtaining the warrant,2 Mr. Marshall fails to

indicate that any information from that search went into the affidavit, or if it did, that
2
       Mr. Marshall provides few facts to establish that a prior search occurred. Nor
does he address whether the warrantless search was justified by exigent
circumstances. See United States v. Porter, 594 F.3d 1251, 1255 (10th Cir. 2010)
(“An exception to the warrant requirement exists . . . when the exigencies in a
situation make the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.” (brackets, ellipsis,
and internal quotation marks omitted)).


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the information was critical to establishing probable cause for the search. See United

States v. Sims, 428 F.3d 945, 954 (10th Cir. 2005) (“An affidavit containing

erroneous or unconstitutionally obtained information invalidates a warrant if that

information was critical to establishing probable cause. If, however, the affidavit

contained sufficient accurate or untainted evidence, the warrant is nevertheless

valid.” (internal quotation marks omitted)). Thus, Mr. Marshall has not demonstrated

that he is entitled to a COA on this ground of ineffective assistance.3

                                     CONCLUSION

      We deny a COA and dismiss this appeal.

                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge




3
       Mr. Marshall also argued to the OCCA that counsel should have objected to
the DNA extracted from inside his mouth because he was not given warnings
required by Miranda v. Arizona, 384 U.S. 436 (1966), and because the warrant that
authorized the extraction contained falsehoods. The OCCA rejected the argument,
noting that Mr. Marshall had provided “only conclusory allegations” challenging the
warrant’s validity and that a valid warrant obviated the need for Miranda warnings.
Marshall, 232 P.3d at 482. Thus, the OCCA concluded that defense counsel could
not have been ineffective by failing to raise a meritless objection. The district court
found that the OCCA reasonably applied Strickland.
       It is unclear if Mr. Marshall is seeking a COA on this ground of ineffective
assistance. To the extent the ground is omitted from his lengthy and convoluted
application for a COA, the ground is waived. See United States v. Yelloweagle,
643 F.3d 1275, 1280 (10th Cir. 2011). Otherwise, Mr. Marshall has failed to show
that a COA is warranted.

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