UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

ZONTA V. WEST,

Petitioner - Appellant,

v.

JIM FARRIS, Warden,

Respondent - Appellee.

No. 14-6107

(D.C. No. 5:13-CV-0017-M)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

 Zonta Vincent West 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. 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
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I 

 On November 7, 2008, while delivering pizza, Jeremy Moore was shot dead 

outside of an apartment complex in Oklahoma City. Police investigators discovered that 

the pizza was ordered from a telephone at West’s home in a nearby apartment complex.

 Under videotaped questioning, West claimed that an acquaintance, Rondell 

Griffin, used his phone to order the pizza, intending to rob the delivery person. West 

revealed substantial knowledge of the crime that only a participant was likely to know. 

He denied taking part in the robbery, maintaining instead that he told Griffin and 

Christian Holder, a co-conspirator who arrived later, that their robbery plan was “crazy.” 

West proffered an alibi that he was with his girlfriend, Ashley Tucker, in her apartment 

during the time of the murder but made conflicting statements about when he went to 

Tucker’s apartment. In a later interview, Tucker told the police that West came and went 

from her apartment at times different from West’s account. 

 According to Griffin, he and West jointly hatched the robbery scheme. After 

Griffin called for the pizza, they informed Holder of their plan. Holder agreed to 

participate and retrieved brass knuckles to use in the robbery. Holder testified that the 

trio then went to the apartment complex where Moore’s body was found. Both Holder 

and Griffin claimed that, once there, they ran into a man named Larry Stelly, who asked 

them about their plans and told them he had a gun. Holder testified that West obtained 

Stelly’s gun and shot Moore after he arrived to deliver the pizza.
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Aside from a receipt for the pizza found in Moore’s pocket, the only physical 

evidence the police discovered was a pizza warming bag in Griffin’s shed. The gun was 

never located.

A jury convicted West of first degree felony murder. He was sentenced to life 

with the possibility of parole. The Oklahoma Court of Criminal Appeals (“OCCA”) 

denied his direct appeal. The district court denied his petition for habeas corpus. West 

now seeks a COA to appeal that denial. 

II 

West may not appeal the denial of § 2254 relief without a COA. § 2253(c)(1). 

We will issue a COA “only if the applicant has made a substantial showing of the denial 

of a constitutional right.” § 2253(c)(2). To satisfy this standard, West 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.” Slack v. McDaniel, 529 U.S. 

473, 484 (2000) (quotations omitted). 

Construing West’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 

1110 (10th Cir. 1991), he alleges that his constitutional rights were denied in four ways: 

(1) he received ineffective assistance of counsel; (2) he was denied due process and the 

right to confront his accuser; (3) the evidence against him was insufficient to support his 

conviction; and (4) the jury was not instructed regarding lesser included offenses. 
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A 

A petitioner claiming ineffective assistance of counsel must establish “that counsel 

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 

defendant by the Sixth Amendment” and that “the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a 

“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.” Id. at 694. 

In reviewing a state court’s application of Strickland, we must be doubly deferential, 

inquiring “whether there is any reasonable argument that counsel satisfied Strickland’s 

deferential standard.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). 

West first argues that his trial counsel were ineffective because they failed to call 

Tucker, his alibi witness. An affidavit submitted in West’s direct appeal explains that 

although Tucker arrived in court pursuant to her subpoena, district attorney staff 

informed her that she could go home. Tucker was told that she did not need to worry 

about the defense’s subpoena, because only the prosecution could “lock her up.” West’s 

attorneys searched the courthouse for Tucker and sent an investigator to her home, but 

ultimately decided to proceed without calling her because the jury had already heard 

West’s alibi in a videotaped statement. The OCCA concluded that counsel’s decision did 

not constitute ineffective representation, but was instead a strategic decision on the part 
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of defense counsel. We agree with the district court that the OCCA’s decision was 

neither contrary to, nor an unreasonable application of, Supreme Court precedent. 

Separately, West argues that his counsel were ineffective because they failed to 

request an alibi instruction. The OCCA rejected this claim in part because the jury was 

instructed on exculpatory statements. West’s attorney understood the exculpatory 

statement instruction as including West’s alibi. We thus agree with the district court that 

the OCCA’s determination was reasonable. 

 Finally, West contends that his lawyers were ineffective because their ignorance of 

evidentiary rules opened the door to harmful evidence. West argues that his lawyers 

structured their trial strategy so as to prevent three witnesses from testifying. Those 

witnesses averred that Holder told them that West shot Moore. West’s lawyers 

nevertheless cross-examined Holder about his motivation to fabricate testimony against 

West to obtain a reduced sentence, incorrectly believing that this would not open the door 

to Holder’s prior consistent statements made to the three witnesses. The OCCA 

concluded that West was not prejudiced by this error because his attorneys were allowed 

to recall Holder and impeach him with inconsistencies in his testimony that they had 

previously avoided, making his statements to the three witnesses seem less credible. 

Despite West’s attorneys’ deficient performance, we agree with the district court that the 

OCCA’s conclusion is neither contrary to, nor an unreasonable application of, Strickland. 
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B 

West contends that improper hearsay testimony violated both the Confrontation 

Clause and his due process rights. Specifically, Holder stated twice that Stelly, who did 

not testify at West’s trial, asked him “why Zonta shot him.” Neither statement was 

elicited by the prosecution, and the judge admonished the jury to ignore the statements. 

Accordingly, the OCCA found that the errors were “harmless beyond a reasonable 

doubt.” 

“When reviewing state court determinations that a constitutional error was 

harmless, we ask whether the error had a substantial and injurious effect on the jury's 

decision.” Banks v. Workman, 692 F.3d 1133, 1139 (10th Cir. 2012) (quotations 

omitted). “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.” Welch v. Workman, 639 F.3d 

980, 992 (10th Cir. 2012) (quotations omitted). 

We have no grave doubt about the effect of Holder’s improper testimony on the 

jury’s verdict. 

C 

West argues that there is insufficient evidence to corroborate the testimony from 

his accomplices implicating him as Moore’s murderer. “When reviewing the sufficiency 

of the evidence on a habeas corpus petition, the relevant question is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 
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fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations omitted). 

 Undeniably, there is no physical evidence linking West to the crime scene. And 

there is scant circumstantial evidence to corroborate testimony that he participated in the 

robbery, let alone that he pulled the trigger. But there is some corroborating evidence—

the phone call was made from West’s home, he admitted allowing Griffin to use his 

phone, and West knew many details of the crime. Viewing the facts in the light most 

favorable to the prosecution, a rational trier of fact could have found this evidence 

sufficient to corroborate the accomplices’ testimony. 

D 

Lastly, West argues that the trial court failed to instruct the jury as to lesser 

included offenses. Oklahoma trial courts “are required to instruct on all lesser included 

or lesser related offenses warranted by the evidence.” Childress v. State, 1 P.3d 1006, 

1011 (Okla. Ct. Crim. App. 2000). However, because West did not raise this issue before 

the district court, it is forfeited. See United States v. Jarvis, 499 F.3d 1196, 1201 (10th 

Cir. 2007) (“Failure to raise an argument before the district court generally results in 

forfeiture on appeal.”). 
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III 

For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge