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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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- 2 - I On November 7, 2008, while deliverin g pizza, Jeremy Moore was shot dead outside of an apartment comple x in Oklahoma City. Police investigators discovered that the pizza was ordered from a telephone at We st’s home in a nearby apartment complex. Under videotaped questioning, West cl aimed 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, ma intaining instead that he told Griffin and Christian Holder, a co-conspirator who arrived later, that their robber y plan was “crazy.” West proffered an alibi that he was with hi s girlfriend, Ashley Tucker, in her apartment during the time of the murder but made conf licting statements abou t 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 di fferent from West’s account. According to Griffin, he and West jointly hatched the robbery scheme. After Griffin called for the pizza, they informed Ho lder of their plan. Holder agreed to participate and retrieved brass knuckles to use in the robbery. Hold er testified that the trio then went to the apar tment complex where Moore’s bo dy was found. Both Holder and Griffin claimed that, once there, they ra n 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.- 3 - Aside from a receipt for the pizza found in Moore’s pocket, the only physical evidence the police discovered was a pizza warm ing bag in Griffin’s shed. The gun was

never located. A jury convicted West of first degree fe lony murder. He was sentenced to life with the possibility of parole. The Oklaho ma Court of Criminal Appeals (“OCCA”) denied his direct appeal. Th e 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 § 22 54 relief without a C OA. § 2253(c)(1). We will issue a COA “only if the applicant ha s made a substantial sh owing of the denial of a constitutional right.” § 2253(c)(2). To sa tisfy this standard, West must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been reso lved in a different manner or th at 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 libera lly, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), he alleges that his cons titutional rights were denied in four ways: (1) he received ineffective assistance of coun sel; (2) he was denied due process and the right to confront his accuser; (3) the evidence against him wa s insufficient to support his conviction; and (4) the jury was not instructed regard ing lesser included offenses.- 4 - A A petitioner claiming ineffective assistance of counsel must esta blish “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 probab ility 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 ar gument 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, dist rict 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 “loc k her up.” West’s attorneys searched the courthou se for Tucker and sent an investigator to her home, but ultimately decided to procee d without calling her because the jury had already heard West’s alibi in a videotaped statement. Th e OCCA concluded that counsel’s decision did not constitute ineffective representation, but was instead a strategic decision on the part- 5 - of defense counsel. We agree with the di strict court that the OCCA’s decision was neither contrary to, nor an unreasonable ap plication 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 st atements. 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 we re ineffective because their ignorance of evidentiary rules opened the doo r to harmful evidence. We st argues that his lawyers structured their trial strategy so as to pr event three witnesses fro m testifying. Those

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

nevertheless cross-examined Holder about his mo tivation to fabricate testimony against

West to obtain a reduced sent ence, incorrectly believing that this would not open the door to Holder’s prior consistent statements made to the three w itnesses. The OCCA concluded that West was not prejudiced by th is 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’ defi cient performance, we agree with the district court that the OCCA’s conclusion is neither contrary to, no r an unreasonable application of, Strickland.- 6 - B West contends that improper hearsay testimony violated bot h the Confrontation Clause and his due process right s. Specifically, Holder stat ed twice that Stelly, who did not testify at West’s trial, asked him “w hy Zonta shot him.” Neither statement was elicited by the prosecution, and the judge admoni shed the jury to igno re the statements. Accordingly, the OCCA found that the e rrors were “harmless beyond a reasonable

doubt.” “When reviewing state cour t determinations that a constitutional error was harmless, we ask whether the error had a subs tantial 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 ev idence to corroborate the testimony from his accomplices implicating him as Moore’s mu rderer. “When reviewing the sufficiency of the evidence on a habeas corpus petition, the relevant question is whether, after viewing the evidence in th e light most favorable to the prosecution, any rational trier of- 7 - fact could have found the essential elements of the crime beyond a reasonable doubt.” Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 20 04) (quotations omitted). Undeniably, there is no physical evidence linking West to the crime scene. And

there is scant circumstantial ev idence to corroborate testimony that he participated in the robbery, let alone that he pulled the trigge r. But there is some corroborating evidence— the phone call was made from West’s home, he admitted a llowing Griffin to use his phone, and West knew many deta ils of the crime. Viewing the facts in the light most favorable to the prosecution, a rational trie r of fact could have found this evidence

sufficient to corroborate the accomplices’ testimony.

D Lastly, West argues that the trial court fa iled 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. 20 00). However, because West did not raise this issue before the district court, it is forfeited. See Unite d States v. Jarvis, 49 9 F.3d 1196, 1201 (10th Cir. 2007) (“Failure to raise an argument befo re the district court generally results in forfeiture on appeal.”).- 8 - III For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge