*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 15 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY RAY GASSAWAY,

Petitioner-Appellant,

v.

R. MICHAEL CODY, Warden,

Respondent-Appellee.

No. 97-7073

(D.C. No. 93-CV-873)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Petitioner Billy Ray Gassaway, a state inmate appearing pro se, appeals the

the district court's dismissal of his petition for a writ of habeas corpus, brought

pursuant to 28 U.S.C. § 2254. We exercise jurisdiction and affirm.

Mr. Gassaway was convicted in Oklahoma of first-degree murder and

sentenced to life imprisonment without the possibility of parole. Mr. Gassaway

was unsuccessful in his direct appeal and in his state court petition for post

conviction relief. Mr. Gassaway then filed a pro se habeas corpus petition in the

United States District Court alleging his first-degree murder conviction was

invalid due to the ineffective assistance of both his trial and appellate counsel.

The district court declined to address the merits of Mr. Gassaway's

ineffective assistance claim, determining the claim was procedurally barred, and

dismissed the petition. Mr. Gassaway appealed. This court reversed and

remanded, concluding the ineffective assistance of counsel claim was not

procedurally barred. See Gassaway v. Cody, No. 94-7069, 1994 WL 589446 (10th

Cir. Oct. 28, 1994) (unpublished decision). Upon remand and after considering

the merits of Mr. Gassaway's claims, the magistrate judge issued a report

recommending dismissal of the petition. The district court rejected Mr.
-3-

Gassaway's objections to the magistrate judge's report, adopted the magistrate

judge's Findings and Recommendation, and denied the petition. Mr. Gassaway

now appeals from the district court's dismissal of his petition.

Mr. Gassaway continues to argue on appeal that both his trial and appellate

counsel were ineffective. Mr. Gassaway alleges counsel's ineffectiveness as to

three claims: "(1) illegal search and seizure claim; (2) illegal [sic] obtained

statement offered into evidence claim and (3) 6th and 14th [A]mendment claims." 

Mr. Gassaway's claim for relief is related to a pistol holster he alleges was

obtained in an illegal search and which he contends should have been suppressed. 

He also contends an allegedly illegally obtained statement should have been

suppressed. Mr. Gassaway further contends his appellate counsel failed to cite

relevant authority in his appellate brief to support these claims.

We review claims of ineffective assistance of counsel de novo. Hoxsie v.

Kerby, 108 F.3d 1239, 1245 (10th Cir.), cert. denied, 118 S. Ct. 126 (1997). To

prevail, Mr. Gassaway must meet the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). First, he must show his counsel's performance

fell below an objective standard of reasonableness. Id. at 688. Second, he must

show the deficient performance of counsel resulted in prejudice to his defense. 
-4-

Id. at 687. There is a "strong presumption" counsel provided effective assistance

and the petitioner has the burden of proof to overcome that presumption. United

States v. Voigt, 877 F.2d 1465, 1468 (10th Cir.), cert. denied, 493 U.S. 982

(1989) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)).

After reviewing the briefs, the magistrate judge's report, the district court's

order, the district court record, and relevant case law, we agree with the district

court's denial of habeas corpus relief for substantially the same reasons stated by

the magistrate judge's Findings and Recommendation, filed March 19, 1997, and

the district court's order of May 22, 1997. Briefly, a review of the record

indicates that Mr. Gassaway's trial counsel filed a motion to suppress introduction

of a pistol holster found after the victim's murder and that the holster was not

offered into evidence. With respect to appellate counsel's briefing of this issue,

the record indicates he permissibly relied on trial counsel's thorough briefing of

the argument, incorporating it by reference.

The allegedly illegally obtained statements were made by Mr. Gassaway's

co-defendant, Gerald Berrie. Mr. Berrie ultimately testified for the prosecution

and was thoroughly cross-examined by Mr. Gassaway's defense counsel. With

respect to appellate counsel's briefing of this issue, the record indicates appellate
-5-

counsel adequately addressed the suppression issue given the fact that Mr. Berrie

testified at trial.

Mr. Gassaway also raises a Sixth and Fourteenth Amendment claim

alleging both his trial counsel and appellate counsel were ineffective. Mr.

Gassaway's original allegations are contradicted by the record and clearly fail to

meet the Strickland standards. Mr. Gassaway's trial counsel prevented

introduction of the holster evidence at trial. His appellate counsel raised the issue

of the motion to suppress the holster evidence on direct criminal appeal, relying

on trial counsel's brief to the trial court. The statement of Mr. Berrie was of no

import at trial because he testified to the same information and was crossexamined as to whether he was coerced or a deal had been made. Appellate

counsel considered carefully whether Mr. Berrie's statement was a significant

legal issue for direct criminal appeal, and clearly exhibited reasonable

professional efforts to raise the best issues on Mr. Gassaway's behalf. We

conclude none of the grounds on which Mr. Gassaway claims ineffective

assistance of counsel rise to the level of a constitutional violation.

Finally, in his reply to respondent's supplemental response, Mr. Gassaway

makes several allegations, all related to his ineffective assistance of counsel
1

 The holding of Granberry was subsequently codified by the Antiterrorism

and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(b)(2)

(authorizing the denial of a petition on the merits despite failure to exhaust state

remedies).

-6-

claim, not presented to the state courts for review. Mr. Gassaway now alleges his

trial counsel was ineffective for failing to suppress the testimony of both Mr.

Berrie and David Heath, a victim wounded in the shooting incident. He

additionally contends trial counsel was ineffective because the allegedly

unconstitutionally obtained holster evidence was used at his preliminary hearing. 

Finally, he claims appellate counsel was ineffective in failing to raise these issues

on appeal.

Generally, a federal court presented with a habeas petition containing both

exhausted and unexhausted claims should dismiss the entire petition. Rose v.

Lundy, 455 U.S. 509, 510, 522 (1982); see also 28 U.S.C. § 2254(b). We

conclude, however, it is appropriate to address the merits of a habeas petition

absent exhaustion of state remedies where, as here, "the interests of comity and

federalism will be better served by addressing the merits forthwith." Granberry

v. Greer, 481 U.S. 129, 134 (1987); see Miranda v. Cooper, 967 F.2d 392, 400

(10th Cir.), cert. denied, 506 U.S. 924 (1992).1 As the Supreme Court explained,

"if the court of appeals is convinced that the petition has no merit, a belated
-7-

application of the exhaustion rule might simply require useless litigation in the

state courts." Granberry, 481 U.S. at 133.

The magistrate judge determined Mr. Gassaway's additional claims are

procedurally barred. We hold Mr. Gassaway's additional allegations in support of

his ineffective assistance of counsel claim are without merit.

Mr. Gassaway points to certain details missing from Mr. Heath's testimony

at his preliminary hearing and later provided at trial, but he points to no legal

basis for excluding the testimony of the surviving victim. Mr. Gassaway also

attacks Mr. Berrie's testimony as uncorroborated in certain details. Again, Mr.

Berrie testified at trial and was available for cross-examination by the defense. 

Moreover, Mr. Gassaway fails to indicate how his defense was prejudiced by the

absence of corroborating evidence for every detail of Mr. Berrie's testimony. 

Finally, Mr. Gassaway claims his trial counsel was ineffective because the

allegedly unconstitutionally obtained holster was used at his preliminary hearing. 

However, Mr. Gassaway also admits the holster was used "over defense counsel's

objection" at the preliminary hearing.
-8-

In sum, defense trial counsel objected to the use of the holster at the

preliminary hearing and filed a motion, accompanied by a brief, to suppress the

holster evidence. Notwithstanding the fact the holster was not introduced at trial,

appellate counsel raised the suppression issue on appeal and pointed to the brief

submitted by Mr. Gassaway's trial counsel. Both trial and appellate counsel took

reasonable steps to defend Mr. Gassaway. Mr. Gassaway fails to establish either

his trial or appellate counsel was ineffective; he utterly fails to meet the standards

required by Strickland, 466 U.S. at 687-88.

Mr. Gassaway's petition is without merit. The judgment of the United

States District Court for the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

WADE BRORBY

United States Circuit Judge