* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Billy Ray Gassaway, a state inmate appea ring 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 jurisdic tion and affirm.
Mr. Gassaway was convicted in Oklahoma of first-deg ree murder and sentenced to life imprisonment without the possibil ity of parole. Mr. Gassaway was unsuccessful in his direct appeal and in his st ate 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-deg ree murder conviction was invalid due to the ineffective assistance of both h is trial and appellate counsel.

The district court declined to address the merits o f Mr. Gassaway's ineffective assistance claim, determining the claim was procedurally barred, and dismissed the petition. Mr. Gassaway appealed. Th is 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 See Gassaway v. Cody , No. 94-7069, 1994 WL 589446 (10th Cir. Oct. 28, 1994) (unpublished decision).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 r emand and after considering the merits of Mr. Gassaway's claims, the magistrate judge issued a report recommending dismissal of the petition. The distri ct court rejected Mr.-3-

Gassaway's objections to the magistrate judge's rep ort, 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 cou nsel's ineffectiveness as to three claims: "(1) illegal search and seizure clai m; (2) illegal [sic] obtained statement offered into evidence claim and (3) 6th a nd 14th [A]mendment claims." Mr. Gassaway's claim for relief is related to a pis tol holster he alleges was obtained in an illegal search and which he contends should have been suppressed. He also contends an allegedly illegally obtained st atement should have been suppressed. Mr. Gassaway further contends his appe llate counsel failed to cite relevant authority in his appellate brief to support these claims.

We review claims of ineffective assistance of couns el 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 cou nsel'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 p rovided effective assistance and the petitioner has the burden of proof to overc ome 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 substant ially 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. Briefl y, a review of the record indicates that Mr. Gassaway's trial counsel filed amotion to suppress introduction of a pistol holster found after the victim's murderand that the holster was not offered into evidence. With respect to appellate c ounsel'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 ma de 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 iss ue, 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 Ame ndment claim alleging both his trial counsel and appellate couns el were ineffective. Mr. Gassaway's original allegations are contradicted bythe 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 d irect criminal appeal, relying on trial counsel's brief to the trial court. The s tatement of Mr. Berrie was of no import at trial because he testified to the same in formation and was crossexamined as to whether he was coerced or a deal had been made. Appellate counsel considered carefully whether Mr. Berrie's s tatement 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 consti tutional violation.
Finally, in his reply to respondent's supplemental response, Mr. Gassaway makes several allegations, all related to his ineff ective assistance of counsel1 The holding of Granberrywas 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 suppre ss the testimony of both Mr. Berrie and David Heath, a victim wounded in the sho oting incident. He additionally contends trial counsel was ineffective because the allegedly unconstitutionally obtained holster evidence was us ed at his preliminary hearing. Finally, he claims appellate counsel was ineffectiv e 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 peti tion has no merit, a belated-7-

application of the exhaustion rule might simply req uire useless litigation in the state courts." Granberry , 481 U.S. at 133.
The magistrate judge determined Mr. Gassaway's addi tional claims are procedurally barred. We hold Mr. Gassaway's additi onal allegations in support of his ineffective assistance of counsel claim are wit hout merit.
Mr. Gassaway points to certain details missing fromMr. Heath's testimony at his preliminary hearing and later provided at tr ial, 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 incertain details. Again, Mr. Berrie testified at trial and was available for cro ss-examination by the defense. Moreover, Mr. Gassaway fails to indicate how his de fense 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 u sed at his preliminary hearing. However, Mr. Gassaway also admits the holster was u sed "over defense counsel's objection" at the preliminary hearing.-8-

In sum, defense trial counsel objected to the use o f the holster at the preliminary hearing and filed a motion, accompanied by a brief, to suppress the holster evidence. Notwithstanding the fact the hol ster was notintroduced at trial, appellate counsel raised the suppression issue on appeal and pointed to the brief submitted by Mr. Gassaway's trial counsel. Both tr ial 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 judg ment of the United States District Court for the Eastern District of O klahoma is AFFIRMED
.

Entered for the Court
WADE BRORBY United States Circuit Judge