UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARK ANTHONY BARNETT, Petitioner - Appellant,

v. ERIC FRANKLIN, Warden, Respondent - Appellee. No. 13-6172 (D.C. No. 5:10-CV-00153-D) (W.D. Okla.)

ORDER AND JUDGMENT *

Before GORSUCH , McKAY , and ANDERSON , Circuit Judges.
Mark Anthony Barnett appeals the distri ct court’s denial of his petition for habeas corpus brought unde r 28 U.S.C. § 2254. Exer cising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm. I. B ACKGROUND Mr. Barnett was convicted of two counts of first degree murder for the shooting deaths of Stanley Johnson and Beverly Meadows. He was sentenced to

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 20, 2014 Elisabeth A. Shumaker Clerk of Court- 2 - concurrent terms of life imprisonment, one of which is without the possibility of parole. At his trial, the government presented evidence that Mr. Ba rnett got into a physical altercation with Mr . Johnson at Mr. Johnson’s home, shot him, and then shot Ms. Meadows. A friend of Mr . Johnson’s, Jerry Leslie, tes tified that he saw a black male fighting with Mr. Johnson and shoot a pistol into the floor, during which time he also saw Andre Hutson and Lincoln Edmundson go out side during the fight. Mr. Leslie could not identify the shooter but Mr. Edmundson, along with three other witnesses, identified Mr. Ba rnett as the one who shot Mr. Johnson. Mr. Edmundson also testified that while he was outside, he heard the shooting stop, saw Mr. Barnett emerge from the house, get another gun from Mr. Hutson, and then go back into the house to shoot Ms. Meadows. Mr. Barnett was represented by retained counsel throughout the trial court proceedings. He testified in his own defense, which focu sed on Mr. Barnett’s state of mind instead of his identity as the shooter. Mr. Barnett testified that he had taken several drugs the night of the shootings a nd thus claimed he c ould not have had the mens rea sufficient for a firs t degree murder conviction. The jury was not convinced, however, and convicted Mr. Barnett of firs t degree murder but spared him the death penalty. After an unsuccessful direct appeal while represented by appointed counsel, Mr. Barnett filed a petition for post-convicti on relief in state court. Among other- 3 - claims, he alleged his trial a nd appellate attorneys provided ineffective assistance of counsel in violation of the Sixth Amendment. See Strickland v. Washington , 466 U.S. 668 (1984) (a defenda nt is entitled to relief for ineffective assistance of counsel in violation of hi s Sixth Amendment rights if he shows (1) his counsel’s performance fell below an objec tive standard of reasonablen ess; and (2) his counsel’s deficient performance gives rise to a reas onable probability that, but for his counsel’s ineffectiveness, the result of the proceeding would have b een different). Mr. Barnett particularly alleged that both his trial and appellate attorney s failed to utilize information that a trial w itness, Sherry Ellis, gave to investigators showing Mr. Barnett may not have been the shooter. 1 He claimed that his trial attorney failed to question Ms. Ellis at trial about the stat ement she gave to inve stigators, depriving him of the opportunity to question the cr edibility of Mr. Edm undson’s testimony and otherwise present evidence to the jury that he was not the shooter. The state trial court denied Mr. Barn ett’s petition. The court found that Mr. Barnett’s claim for ineffective assistance of trial c ounsel was procedurally barred because he failed to raise th e issue on direct appeal and wa s otherwise without merit.

1 Mr. Barnett identifies thr ee of Ms. Ellis’ comments: (1 ) she stated that she saw Mr. Edmundson leave the house with a sma ll silver gun, whic h conflicts with Mr. Edmundson’s testimony that he left th e house with a shotgun (the small silver gun more closely resembled the murder we apon); (2) she stated that as she drove away from the scene, she saw an unknown person figh ting with Mr. Johnson and identified a picture of Mr. Hutson’s brot her as the person fighting; and (3) she reported that she heard Mr. Johnson was ki lled because he wa s a witness to a previous murder (as opposed to trial test imony that showed th e fight started over a thrown beer can).- 4 - The court found that Mr. Barn ett’s ineffective as sistance of appellate counsel claim did not meet the test outlined in Strickland . The Oklahoma state court of appeals affirmed the trial court’s conclusion that Mr. Barnett’s trial counsel claim was procedurally barred and that his appe llate counsel claim lacked merit. Mr. Barnett then brought his current § 2254 petition in federal court and requested an evidentiary hear ing. The district court d ecided that his ineffective assistance of trial counsel claim was not procedura lly barred but denied both ineffective assistance claims on their merits. The court denied Mr. Barnett’s request for an evidentiary hearing on those claims b ecause it found he could not satisfy either prong of the Strickland test. Mr. Barnett now appeals to this court, having been granted a certificate of appealability by the district court on his claim for ineffective assistance of trial counsel. II. D ISCUSSION Before addressing the merits of Mr. Ba rnett’s appeal, we mu st first consider our standard of review. The government contends that the Supreme Court’s decision in Harrington v. Richter , 131 S. Ct. 770 (2011), requires us to grant deference under 28 U.S.C. § 2254(d) to the state court decision denying Mr. Barnett’s claim. See 28 U.S.C. § 2254(d) (habeas corpus shall not be granted on a claim adjudicated on the merits in state court unless the stat e court’s decision involved an unreasonable application of federal law or an unreasonable determina tion of the facts). In Richter , the Court emphasized that § 2254(d) demands great deference because a state court’s- 5 - denial of habeas relief on the merits precludes federal habeas relief “so long as fairminded jurists could disagree on the co rrectness of the state court’s decision.” 131 S. Ct. at 786 (interna l quotation marks omitted). However, contrary to the government’s contention, § 2254( d) deference is inappropriate here. While the Oklahoma trial court found that Mr. Barnett’s ineffective assistance of trial c ounsel claim was procedurally barred and lacked merit, the state court of appeals affirmed only the tr ial court’s conclusion that Mr. Barnett’s claim was pro cedurally barred. Thus, th e last reasoned state court decision did not decide the merits of Mr . Barnett’s claim and § 2254(d) therefore does not apply. See, e.g

. , Taylor v. Grounds , 721 F.3d 809, 817 (7th Cir. 2013) (holding that “when a state co llateral review system issu es multiple decisions, we typically consider the last reasoned opinion on the clai m” (internal quotation marks omitted)); see also Smith v. Lopez , 731 F.3d 859, 871 (9th Cir. 2013), petition for cert. filed (U.S. Feb. 5, 2014) (No. 13-946). Further, the district court below ruled that Mr. Barnett’ s claim was not, in fact , procedurally barred. 2 “If a claim was not resolved by the state c ourts on the merits and is not otherwise procedurally barred . . . we review the di strict court’s legal conclu sions de novo and its factual

2 Specifically, the district court noted that the government did not challenge the magistrate judge’s finding that Mr. Barnet t’s claim was not procedurally barred and thus waived the issue. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).- 6 - findings, if any, fo r clear error.” Cole v. Trammell , 735 F.3d 1194, 1200 (10th Cir. 2013). On appeal, Mr. Barnett argues that the district court erred in failing to grant him an evidentiary hearing on his ineffectiv e assistance of tria l counsel claim. Mr. Barnett is entitled to an evidentiary hearing only if “h is allegations, if true and not contravened by the record, woul d entitle him to ha beas relief.” Mayes v. Gibson , 210 F.3d 1284, 1287 (10th Cir. 2000). Mr. Barnett’s entitl ement to relief is governed by the two part Strickland test, which requires that he demonstrate (1) his “counsel’s representation fell below an objective standard of reasonableness” and (2) there is a reasonable probability that, but for his counsel’s deficient pe rformance, “the result of the proceeding would have been different.” Strickland , 466 U.S. at 688, 694. Mr. Barnett must also overcome the presump tion of reasonableness afforded to trial counsel. Mayes , 210 F.3d at 1288. Mr. Barnett contends that his trial counsel was constitu tionally deficient because he failed to use at trial the statements Ms. Ellis gave to police shortly after the shootings. Had he done so, Mr. Barnet t asserts, the jury could have heard testimony about an alternate theory of de fense that Mr. Barnet t did not shoot the victims at all. Mr. Barnet t particularly focuses on the missed opportunity to use Ms. Ellis’ statements to im peach Mr. Edmundson’s identification of Mr. Barnett as the shooter. He also alleges that his counsel should have used Ms. Ellis’ statements to challenge Mr. Edmundson’s testim ony that Mr. Edmundson was carrying a- 7 - shotgun the night of the shooting instead of a gun that more closely resembled the murder weapon. We are not convinced Mr. Barnett has shown entitlement to habeas relief under Strickland . Mr. Barnett’s attorney’s entire trial strategy wa s not to deny Mr. Barnett was the shooter but rather to undermin e the state of mind element—through a voluntary intoxication defens e—required for a first degree murder conviction. If his attorney had challenged Mr. Edmundson on cross-examina tion about the identity of the shooter, such impeachment would have been incongruent with Mr. Barnett’s overall defense. Using Ms. Ellis’ te stimony would thus only be useful if Mr. Barnett’s counsel’s tria l strategy was completely di fferent. But Mr. Barnett’s allegations about the utility of Ms. Ellis’ statements, even if true, hardly amount to the kind of evidence that demanded an entirely different st rategy and made his counsel’s original strate gy unreasonable. Given the substantial evidence that Mr. Barnett was indeed the shooter and in li ght of the presumptio n that Mr. Barnett’s attorney’s decisions were s ound trial strategy, Mr. Barnett has not established that his counsel’s performance fell below an objectiv ely reasonable standard by failing to use Ms. Ellis’ statements. Nor can Mr. Barnett demonstrate prej udice. Three other witnesses besides Mr. Edmundson positively identified Mr. Ba rnett as the shooter, marking a sharp contrast between the strength of the gove rnment’s identifica tion evidence and the relative weakness of the evid ence Mr. Barnett claims woul d have shown the jury he- 8 - did not commit the crime. Moreover, Ms. Ellis all but recanted two of the three statements she gave to investigators, fu rther weakening the alleged helpfulness of such statements at trial. Mr. Barnett’s allegations about his trial counsel’s failure to use Ms. Ellis’ statements and present a diff erent defense are therefore not “sufficient to undermine confidence in the outcome.” See Strickland , 466 U.S. at 694. Accordingly, Mr. Barnett ha s not demonstrated he is entitled to an evidentiary hearing. The judgment of the distri ct court is affirmed.

Entered for the Court
Stephen H. Anderson Circuit Judge