UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

FREDERICK LEE DURBIN,

 Petitioner - Appellant,

v.

GREG PROVINCE, Warden,

Respondent - Appellee.

No. 11-7028

(D.C. No. 6:07-CV-00262-JHP-KEW)

(E.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges. 

 

Petitioner Frederick Lee Durbin, an Oklahoma state prisoner proceeding pro se, 

seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 

habeas corpus petition filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) 

(providing no appeal may be taken from a final order disposing of a § 2254 petition 

unless the petitioner first obtains a COA). We deny the COA request and dismiss this 

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*This order is not binding precedent, except under the doctrines of law of the case, 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

August 25, 2011

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

 An Oklahoma state court jury convicted Mr. Durbin in 2004 of three counts of 

lewd molestation of his 12-year-old son and three counts of lewd molestation of his 11-

year-old nephew. Because Mr. Durbin had been previously convicted in 1992 of two 

separate felonies for lewd molestation, he was sentenced under Okla. Stat. tit. 21, 

§ 1123(A) to life in prison without parole. The Oklahoma Court of Criminal Appeals 

(“OCCA”) affirmed the judgment and sentence. Mr. Durbin filed for post-conviction 

relief, which the OCCA dismissed. He filed the instant § 2254 habeas petition on August 

24, 2007. In the petition, Mr. Durbin claimed improper admission of child hearsay 

testimony under Okla. Stat. tit. 12 § 2803.1, and ineffective assistance of appellate 

counsel. 

 Mr. Durbin’s § 2254 petition was referred to a magistrate judge, who prepared a 

comprehensive Report and Recommendation (“R & R”). Durbin v. Province, No. Civ. 

07-262-JHP-KEW, 2010 WL 6268375 (E.D. Okla. Sept. 2, 2010). The magistrate judge 

recommended that Mr. Durbin’s child hearsay claim should be denied because it 

concerned a matter of state law and because any erroneous admissions of evidence was 

not so fundamentally unfair as to violate due process. Id. at *3–4 (citing Williamson v. 

Ward, 110 F.3d 1508, 1522–23 (10th Cir. 1997) (“When the admission of evidence in a 

state trial is challenged on federal habeas, the question is whether the error, if any, was so 

grossly prejudicial that it fatally infected the trial and denied the fundamental fairness 

that is the essence of due process.”)). The magistrate judge also recommended that Mr. 
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Durbin’s claims of ineffective assistance of counsel should be denied. Id. at *15. The 

district court adopted the Report and Recommendation and denied Mr. Durbin’s § 2254 

petition. Durbin v. Province, No. CIV 07-262-JHP-KEW, 2011 WL 1060730, at *1 

(E.D. Okla. March 23, 2011). 

II. DISCUSSION 

 To receive a COA, Mr. Durbin “must make a substantial showing of the denial of 

a constitutional right . . . [which] includes showing 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, 483–84 (2000) (quotations omitted). 

In evaluating whether Mr. Durbin has carried his burden, this court undertakes “a 

preliminary, though not definitive, consideration of the [legal] framework” applicable to 

each of his claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Mr. Durbin is not 

required to demonstrate that his appeal will succeed to be entitled to a COA. He must, 

however, “prove something more than the absence of frivolity or the existence of mere 

good faith.” Id. (quotations omitted). 

 Mr. Durbin’s brief is not a model of clarity, but we have done our best to 

understand his contentions by reviewing his appellate brief, his brief to the district court, 

the magistrate judge’s recommendations, and the record in this case. 

A. Child Hearsay Testimony 

 Mr. Durbin alleges that he was denied a fair trial because the trial court admitted 
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hearsay statements from prosecution witnesses without first conducting a hearing as 

required by Okla. Stat. tit. 12 § 2803.1 to determine that such testimony was reliable.1

 

Specifically, Mr. Durbin objects to the trial court’s failure to: (1) conduct a hearing 

before Calvin Steudeman testified; and (2) explain its decision to admit the testimony of 

Wyndel Goodin after holding a hearing before he testified. 

 Because this is an issue of state evidentiary law, we review only to ensure that the 

state court’s rulings did not violate the Constitution, laws, or treaties of the United States. 

Estelle v. McGuire, 502 U.S. 62, 68 (1991). It is not the responsibility of a federal 

habeas court to cure errors from the state court concerning state law. Id. at 67–68. We 

will only consider state law evidentiary questions on habeas “if the alleged error was so 

grossly prejudicial that it fatally infected the trial and denied the fundamental fairness 

that is the essence of due process.” Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 

2002) (quotations omitted), cert. denied 537 U.S. 1021 (2002). 

 Mr. Stuedeman testified that one of the victims told him that the victim had spent 

the night at Mr. Durbin’s home and did not want to talk about what happened there. The 

prosecution offered this statement not to prove its truth—that the victim did not want to 

talk about what had happened at Mr. Durbin’s home—but rather to show that the victim 

was hesitant to reveal what had actually happened on the night of the crimes. Although 

 1

Among other requirements, section 2803.1 requires that the court find “in a 

hearing outside the presence of the jury, that the time, content and totality of 

circumstances surrounding the taking of the statement provide sufficient indicia of 

reliability so as to render it inherently trustworthy.” 
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we agree with the magistrate judge and the OCCA that this statement was not hearsay, 

Durbin, 2010 WL 6268375 at *3, thereby rendering a section 2803.1 hearing 

unnecessary, even if it were hearsay, we also agree with the magistrate judge that the trial 

court’s admission of this testimony did not render Mr. Durbin’s trial fundamentally 

unfair. 

Mr. Durbin also claims that, although the trial court conducted an in camera 

hearing before Mr. Goodin testified, the trial court did not properly explain why his 

hearsay statements were reliable. We agree with the magistrate judge that because Mr. 

Goodin’s hearsay statements largely corroborated the testimony of the victim, the trial 

court’s failure to explain the basis for reliability did not render Mr. Durbin’s trial 

fundamentally unfair. 

B. Ineffective Assistance of Appellate Counsel 

 Mr. Durbin’s claims regarding ineffective assistance of counsel are directed at his 

appellate lawyer. A criminal defendant is entitled to effective assistance of counsel on 

direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396–97 (1985). To establish a claim of 

ineffective assistance, a petitioner must show both (1) constitutionally deficient 

performance, by demonstrating that his counsel’s conduct was objectively unreasonable, 

and (2) resulting prejudice, by demonstrating a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the case would be different. See Strickland 

v. Washington, 466 U.S. 668, 687 (1984). Appellate counsel need not raise every 

nonfrivolous issue on appeal and may select from among those available to maximize the 
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likelihood of success. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citing 

Smith v. Robbins, 528 U.S. 259, 288 (2000)). “[W]e ‘indulge in a strong presumption 

that counsel’s conduct falls within the wide range of reasonable professional assistance’” 

and presume that counsel’s conduct is sound strategy. Welch v. Workman, 639 F.3d 980, 

1010 (10th Cir. 2011) (quoting Strickland, 466 U.S. at 689). 

Mr. Durbin specifically challenges appellate counsel’s failure on direct appeal to 

raise trial counsel’s failure: (1) to challenge Mr. Steudeman’s and Mr. Goodin’s child 

hearsay testimony during trial; (2) to allow Mr. Durbin to testify; (3) to call certain 

witnesses; (4) to prevent evidence of Mr. Durbin’s prior crimes from reaching the jury; 

and (5) to impeach the verdict. 2 Mr. Durbin further challenges appellate counsel’s 

failure: (6) to challenge Mr. Durbin’s sentence as violating the Ex Post Facto Clause; (7) 

to challenge the verdict based on insufficient evidence; and (8) to challenge discovery 

violations. Mr. Durbin also raises various other claims of ineffective assistance of his 

appellate counsel that he did not raise at the district court. 

1. Failure to Challenge Mr. Goodin’s and Mr. Steudeman’s Testimony 

 2

 The Tenth Circuit generally requires criminal defendants who were tried in 

federal court to allege ineffective assistance of trial counsel in collateral post-conviction 

proceedings rather than in direct appeals. See United States v. Galloway, 56 F.3d 1239, 

1240 (10th Cir. 1995) (en banc). Oklahoma requires state criminal defendants to raise 

ineffective assistance of trial counsel claims on direct appeal so long as the relevant 

information is contained in the trial record. Berget v. State, 907 P.2d 1078, 1084–85 

(Okla. Crim. App. 1995), cert denied, 517 U.S. 1247 (1996). Mr. Durbin claimed in state 

post-conviction collateral proceedings that his appellate counsel did not raise ineffective 

assistance of trial counsel issues on direct appeal. He may therefore raise ineffective 

assistance of appellate counsel in his § 2254 petition. 
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Mr. Durbin complains that his appellate counsel did not raise on appeal trial 

counsel’s failure to request a § 2803.1 hearing before Mr. Steudeman’s testimony and 

because he did not raise trial counsel’s failure to challenge the trial court’s findings after 

it conducted a hearing before Mr. Goodin’s testimony. The OCCA held that a hearing 

was not required before Mr. Steudeman’s testimony and that any deficiency in the trial 

court’s ruling as to Mr. Goodin’s testimony was harmless error. We agree. Mr. Durbin 

would not have prevailed in the district court on these issues and thus was not prejudiced 

by the omission of these issues on direct appeal. 

2. Failure to Allow Mr. Durbin to Testify 

Mr. Durbin complains that appellate counsel did not raise on appeal that trial 

counsel prohibited Mr. Durbin from testifying. He argues that his testimony about the 

timeline of events and the victims’ behaviors would have diminished the victims’ 

credibility. Whether a criminal defendant testifies at his trial is the defendant’s decision. 

See Harris v. New York, 401 U.S. 222, 225 (1971); Hooks v. State, 862 P.2d 1273, 1283 

(Okla. Crim. App. 1993). Apart from Mr. Durbin’s unsupported allegations, nothing in 

the record suggests that Mr. Durbin’s counsel prohibited him from testifying. See 

Durbin, 2010 WL 6268375, at *6. Further, we agree with the magistrate judge that even 

if Mr. Durbin’s counsel advised him not to testify, such a suggestion would be considered 

a matter of trial strategy. Id. (citing Cameron v. State, 829 P.2d 47, 54–55 (Okla. Crim. 

App. 1992)). Thus, appellate counsel’s failure to raise this issue did not constitute 

ineffective assistance of counsel. 
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3. Failure to Call Certain Witnesses 

Mr. Durbin claims that his trial counsel failed to call certain witnesses that were 

vital to his defense and that appellate counsel did not raise this issue on appeal. “[T]he 

decision of which witnesses to call is quintessentially a matter of strategy.” Boyle v. 

McKune, 544 F.3d 1132, 1139 (10th Cir. 2008), cert denied, 129 S. Ct. 1630 (2009). 

According to Mr. Durbin, these witnesses would have testified to many of the same 

matters as other defense witnesses; namely, the victims’ reputation for lying and Mr. 

Durbin’s for good character. After reviewing the record, we cannot say that trial 

counsel’s strategy was unreasonable. See Bullock v. Carver, 297 F.3d 1036, 1044, 1046 

(10th Cir. 2002), cert denied, 537 U.S. 1093 (2002). We agree with the magistrate judge 

that trial counsel’s failure to call these witnesses did not prejudice Mr. Durbin. Appellate 

counsel’s failure to raise this issue did not constitute ineffective assistance of counsel. 

4. Improper Admission of Other Crimes Evidence 

Mr. Durbin complains that his trial lawyer’s failure to object to multiple references 

to his past convictions of lewd molestation should have been raised on direct appeal. Mr. 

Durbin, however, stipulated to these prior offenses at the beginning of the trial when he 

agreed to a one-stage proceeding rather than a bifurcated proceeding. Under Okla. Stat. 

tit. 22 § 860.1, in cases where a defendant is prosecuted for a second or subsequent 

offense, the trial is generally conducted in two parts. In the first part, the jury decides 

only whether the defendant is innocent or guilty, and there is no reference to the 

defendant’s prior offenses. If the jury finds the defendant guilty, the jury then learns 
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about the defendant’s prior offenses, is instructed on the law related to second and 

subsequent offenses, and then determines the proper punishment. 

As the trial court explained to Mr. Durbin: “By asking this to be a one-stage 

proceeding, the jury will know from the beginning that you have two prior convictions, 

and there will not be a second stage where the District Attorney is required to prove 

those.” ROA, vol.2, pt.2 at 10–11. Despite this explanation, Mr. Durbin chose a onestage proceeding. Because the jury was already aware of Mr. Durbin’s prior convictions 

by way of stipulation, we cannot say that trial counsel’s failure to object to references to 

Mr. Durbin’s prior convictions unfairly prejudiced Mr. Durbin. Thus, we agree with the 

magistrate judge that appellate counsel’s failure to appeal this issue did not rise to the 

level of ineffective assistance of counsel. 

5. Failure to Impeach the Verdict 

Mr. Durbin claims that his appellate counsel was ineffective in failing to appeal 

trial counsel’s failure to impeach Mr. Durbin’s verdict. According to Mr. Durbin, the day 

before he was sentenced, a juror called his trial counsel’s office and spoke to a secretary. 

The juror allegedly said that the jury had not believed the victims’ testimony and had 

convicted Mr. Durbin solely based on his past convictions. Mr. Durbin claims that trial 

counsel should have immediately moved to impeach the jury’s verdict and that appellate 

counsel’s failure to pursue this issue prejudiced his appeal. 

Okla. Stat. tit. 12 § 2606(B), which is nearly identical to FRE 606(b), states that: 

Upon an inquiry into the validity of a verdict or indictment, a juror shall not 
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testify as to any matter or statement occurring during the course of the 

jury’s deliberations or as to the effect of anything upon the juror’s mind or 

another juror’s mind or emotions as influencing the juror to assent to or 

dissent from the verdict or indictment or concerning the juror’s mental 

processes during deliberations. 

Under the rules of evidence, this evidence of the jury’s deliberations would not have been 

admissible. See Rushen v. Spain, 464 U.S. 114, 121 n.5 (1983) (“[A] juror generally 

cannot testify about the mental process by which the verdict was arrived.”); Wood v. 

State, 158 P.3d 467, 480 n. 29 (Okla. Crim. App. 2007). Further, Mr. Durbin has 

presented no otherwise admissible evidence that this conversation actually occurred. 

Because neither trial counsel nor appellate counsel would have succeeded in attempting 

to impeach the verdict, appellate counsel was not ineffective for failing to bring this 

claim. 

6. Ex Post Facto Sentencing 

 The penalty provision of Okla. Stat. tit. 21 § 1123 was amended in 1992 to include 

the imposition of life in prison or life in prison without parole for a third violation of that 

section. Mr. Durbin’s first two felony convictions occurred before this provision was 

added to § 1123. Mr. Durbin claims that his appellate counsel was ineffective by failing 

to challenge Mr. Durbin’s sentence as violating the Ex Post Facto Clause of the United 

States Constitution. 

For a criminal law to be ex post facto, it must be retrospective—applying to events 

occurring before its enactment—and it must disadvantage the offender affected by it. 

Weaver v. Graham, 450 U.S. 24, 29 (1981). The Ex Post Facto Clause prohibits 
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punishment that is more severe than the punishment assigned by law when the act to be 

punished occurred. Id. at 30. As the Supreme Court stated, “[c]ritical to relief under the 

Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair 

notice and governmental restraint when the legislature increases punishment beyond what 

was prescribed when the crime was consummated.” Id. 

 Despite Mr. Durbin’s first two violations occurring before the sentence enhancer 

was enacted in 1992, his third and most recent violation in 2003 occurred well after it 

was added to § 1123. The new provision did not affect Mr. Durbin’s punishment for his 

two prior convictions. It only affected the punishment for Mr. Durbin’s most recent 

violation of § 1123. Thus, Mr. Durbin had ample notice of the new enhanced 

punishment. For these reasons, we agree with the magistrate judge and cannot say that 

Mr. Durbin would have succeeded had his counsel raised this issue at trial or on appeal. 

7. Insufficient Evidence 

Mr. Durbin claims that his appellate counsel was ineffective because he failed to 

challenge the sufficiency of the evidence for three of Mr. Durbin’s convictions. Under 28 

U.S.C. § 2254(e)(1) habeas review, state court determinations of factual issues are 

presumed to be correct, and the petitioner’s burden of rebutting the presumption is by 

clear and convincing evidence. Although there was conflicting testimony at trial, the 

majority of the testimony supported Mr. Durbin’s convictions. We have reviewed the 

record, Mr. Durbin’s petition, and the controlling law. Mr. Durbin has not persuaded us 

that the OCCA’s finding of sufficiency was incorrect or that there was insufficient 
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evidence to support Mr. Durbin’s convictions. Thus, we agree with the magistrate judge 

that Mr. Durbin’s appellate counsel could not be considered ineffective in failing to bring 

this claim on direct appeal. 

8. Discovery Violations 

Mr. Durbin claims that appellate counsel was ineffective by failing to object to 

various discovery errors, including his trial counsel’s inability to interview the victims 

before trial and to obtain reports from the victims’ counselors. He also complains about 

receiving inadequate summaries of the victims’ interviews. Although it is not clear that 

Mr. Durbin has raised these issues in his current petition, he did raise them at the district 

court. Out of an abundance of caution, we will discuss them here. 

 Mr. Durbin appears to argue that his counsel’s inability to obtain this information 

violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Brady

holds that suppression of evidence favorable to the defendant by the prosecution violates 

due process when the evidence is material to either the defendant’s guilt or punishment. 

373 U.S. at 87. Evidence is material if there is a reasonable probability that, had the 

evidence been disclosed, the result of the proceeding would have been different. United 

States v. Bagley, 473 U.S. 667, 682 (1985). 

Mr. Durbin appears to assert that not having this information caused surprise at 

trial and affected his ability to cross-examine witnesses. He does not explain, however, 

how having the information would have facilitated his defense and, more importantly, 

fails to show that any exculpatory evidence was withheld from him. After reviewing the 
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record, we conclude, along with the magistrate judge, that Mr. Durbin’s alleged inability 

to obtain this information did not affect the outcome of his trial and did not constitute 

ineffective assistance of appellate counsel. 

Lastly, Mr. Durbin appears to argue that these discovery issues violated Okla. Stat. 

tit. 12 § 2803.1’s requirement that, before a statement made by a child concerning 

physical abuse or sexual contact will be admitted, the proponent of that statement must 

inform the adverse party and provide the particulars of the statement at least ten days 

before the proceedings. Section 2803.1, however, applies to hearsay, not the actual 

testimony of children. The victims’ in court testimony was not hearsay. Section 

2803.1’s procedural requirements therefore do not apply. We agree with the magistrate 

judge that appellate counsel’s failure to challenge these discovery issues did not rise to 

the level of ineffective assistance of counsel. 

9. Other Issues Not Raised Below 

 Mr. Durbin attempts to raise additional issues in his appellate brief that he did not 

bring at the district court, such as denial of a request for appointment of counsel, denial of 

a motion for introduction of transcripts of the preliminary hearing into the record, and 

improper admission of hearsay evidence that was the result of leading questions. 

Because we do not generally consider issues raised for the first time on appeal, Rhine v. 

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000), we do 

not address these issues. 
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III. CONCLUSION 

 This court has reviewed Mr. Durbin’s application for a COA and his appellate 

brief, the Report and Recommendation, the district court’s order, and the entire record on 

appeal pursuant to the Miller-El v. Cockrell framework. He has failed, as to all of his 

claims, to show any denial of a constitutional right. The district court’s resolution of Mr. 

Durbin’s claims is not reasonably subject to debate, and the claims are not adequate to 

deserve further proceedings. 

Because Mr. Durbin has not “made a substantial showing of the denial of a 

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). Accordingly, 

this court denies Mr. Durbin’s request for a COA and dismisses this appeal. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge