This order is not binding precedent, except under the doctrines of law *

of the c a se , res judica ta, and collate ra l estoppe l.

F I LED

United States Court of Appeals

Tenth Circuit

October 17, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

ANTONIO LAVELLE SM ITH ,

Pe titione r-Appe llant,

v. No. 06-6067

M ARTY SIRM ONS, Warden,

Respondent-Appellee.

(D .C . No. 04-C V-1072-H )

(W. D. Oklahoma)

O R DER DENYIN G CERTIF ICATE OF APPEALABIL IT Y *

Before HEN R Y , BR ISCOE, and O ’BRIE N , Circuit Judg es.

Petitioner Antonio Lavelle Smith, a prisoner in the custody of the

State of Oklah oma , proc e eding pro se , se eks a c e rtific a te o f appe a lab ility

(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner

obtains a COA).

Smith wa s convicted of first degre e murde r by a jury and senten c ed to

life imprisonment without parole. He appealed his conviction to the
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Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed the

conviction and sentence on M ay 24, 2004. Smith did not file a petition for

post-conviction relief in state court. On August 30, 2004, Smith filed a

petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United

States District Court for the Western District of Oklahoma. On February 11,

2005, the distric t court granted Smith’s motion to amend his compla int. 

Smith filed an amended petition on February 17, 2005, raising nine grounds

for re lief. The se nine grounds mirror the nine grounds ra ised by Smith in

his dire c t appe a l to the OCCA. 

Grounds o ne through four a llege tha t the trial court e rroneously

admitted c e rta in testimony and evidenc e tha t violated Smith’s right to a f a ir

trial and his rights unde r the Confrontation Clau se . In ground five , Smith

a rgue s the trial court e rred in denying his motion for seve ranc e . Ground six

asserts that Smith’s Confrontation Clause rights were violated when the trial

court limited his ability to cross-examine a state witness. In ground seven,

Smith alleges the trial court erroneously failed to sua sponte instruct the

jury on accomplice testimony. In ground eight, Smith contends he was

denied a fair trial by the admission of irrelevant and highly prejudicial

photographs of the victim. Finally, ground nine alleges an accumulation of

e rrors entitling Smith to a new tria l. 

The district court denied Smith’s habeas petition on January 23, 2006
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after adopting the magistrate judge’s report and recommendation and

finding all nine of his grounds to lack merit. On February 9, 2006, the

district court denied a COA becaus e Smith had not made a substantial

sh owing of the denial o f a constitutiona l right an d denied his motion to

proc e ed in forma paupe ris o n appe a l.

This court can issue a COA only “if the applicant has made a

substantia l showing of the denia l of a constitu tiona l right.” 28 U.S.C. §

2253(c)(2). “A petitioner s atisfies this standard by demonstrating that

jurists o f re a so n could disagre e with the distric t co urt’s r e so lution of his

co nstitutional claims or that jurists could co nclud e the issue s presented a re

adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). This determination “requires an

overview of the claims in the habeas petition and a general assessment of

the ir me rits.” Id. at 336. Smith is not required to prove the me rits of his

case, but he must nonetheless demonstrate “something more than the

absence of frivolity” or the mere existence of “good faith” on his part. Id. at

338 (q uota tions omitted). 

Under § 2254, this court may grant a COA on a claim that was

adjudicated on the merits in state court only if the state court’s decision

“wa s contra ry to, or involved an unre a so nable applica tion of, cle a rly

established Federal law, as determined by the Supreme Court of the United
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States” or “was based on an unreasonable determination of the facts in light

of the evidenc e pre sented in the Sta te court pro c e edings.” 28 U.S.C. §

2254(d)(1)-(2). After careful review of Smith’s application, the decision of

the OCCA on direct appeal, the district court’s order denying habeas relief,

an d the material portions of the re co rd, we conclud e tha t Smith’s claims are

without me rit.

Smith’s first thre e grounds involve the admission of evidenc e a t trial,

which he argues denied him a fair trial and violated his rights under the

Confrontation Claus e. Spec ifica lly, he contests admission of an overhea rd

te lephone conve rs a tion he had with his bro the r d is cussing the vic tim, a

threatening phone call his brother made to a potential trial witness, and

evidenc e tha t the vic tim had filed a prote c tive ord e r aga inst his bro the r. 

“[S]tate court rulings on the admissibility of evidence may not be

questioned in federal hab eas proceedings un less they render the trial so

fundamentally unfair as to constitute a denial of federal constitutional

rights.” Tucker v. M akowski, 883 F.2d 877, 881 (10th Cir. 1989) (citation

omitted). The district court properly concluded that the admission of the

evidenc e in que stion did not rende r Smith’s tria l fundamentally unf a ir

becaus e the overheard telephone conversation did not prove central to the

pros ecution’s case and the other evidence implicated Smith’s brother, rather

than Smith.
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Smith alleges in his fourth ground that the admission of the above

evidence and other evidence from trial, specifically statements his brother

made to a detective, violated his Confrontation Clause rights. The

Confrontation Clau se ba rs th e introduc tion of testimonial he a rsay aga inst a

criminal defendant, unless the declarant is unavailable and the accused has

had a prior opportunity to cross-examine the declarant. Crawford v.

Wa sh ington, 541 U.S. 36, 53-54 (2004). None of the sta tements Smith

complains of qualify as testimonial hearsay offered against him under

Crawford. The distric t co urt prope rly conc luded tha t this evidenc e f a ils to

implicate Smith’s rights under the Confrontation Clause because it either: 1)

was not offered against him; 2) did not implicate him, or; 3) was not

he a rsay.

Even if any of this evidence was improperly admitted as testimonial

hearsay, Smith is “no t entitled to habeas relief ba sed on trial error unless

[he] can establish that it resulted in ‘actual prejudice.’” Brecht v.

Abrahamso n, 507 U.S. 619, 637 (1993). Smith ha s f a iled to demonstra te

a c tua l pre judice from the admission of this evidenc e . Fina lly, Smith

asserted in his direct appeal and in arguments in support of this appeal that

his trial counsel’s failure to object to the admission of this evidence was

ine ff e c tive a ssistanc e of counse l. The distric t co urt addre ss ed this

a rgument, though not inc luded in Smith’s h abe a s p e tition, an d found tha t it
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lacks merit becaus e failure to object to admissible evidence is not

ine ff e c tive a ssistanc e of counse l. We agre e with this de te rmina tion. 

Smith’s fifth ground a llege s tha t the trial court e rred in re fusing to

sever his trial from his brother’s trial becaus e he was prejudiced by the

admission of evidenc e tha t pe rta ined sole ly to the c a se aga inst his bro the r. 

“Whether the trial court erred in denying severance is generally a question

of state law that is not cognizable on federal habeas appeal, for a criminal

defendant has no constitutional right to severance unless there is a strong

showing of prejudice caused by the joint trial.” Cummings v. Evans, 161

F.3d 610, 619 (10 th Cir. 1998) (citations omitted). The d istrict court

properly found that this claim lacks merit. The OCCA noted on direct

appeal that Smith and his brother did not present antagonistic defenses and

the minimal evidence presented against his brother during the trial did not

implica te Smith. Furthe r, when the eyewitne ss testimony aga inst Smith is

also considered, both the OCCA and the district court concluded Smith has

f a iled to make a strong showing of pre judic e c aused by the joint tria l. We

agree.

In his sixth ground, Smith alleges a Confrontation Clause violation for

the trial court’s limitation of de f ense counse l’s c ross-examina tion of a sta te

witne ss re la ting to whe the r the vic tim had eve r p a id the witne ss with dru gs. 

“The Confrontation Clause gu arantees an opp ortun ity for effective cross-
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examina tion, not cross-examina tion tha t is e ff e c tive in wha teve r way, an d to

whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986) (citations omitted). Becaus e there was no evidence the

crime at issue related to a drug transaction, the jury had heard enough about

the witness’ drug use to impeach his testimony, and the evidence presented

by this witness was not the only evidence of Smith’s guilt, we agree with the

district court that the O CCA was correct in affirming the trial court’s

limita tion of this non-r e levant te stimony. 

Smith’s s eventh ground a llege s tha t the trial court e rred in f a iling to

sua sp onte instruct the jury that, under Oklahoma law, an ac complice ’s

testimony requires corroboration. The OCCA determined, and the district

court concurred, that the witness at issue was not an accomplice under

Oklah oma law . Even if the witne ss wa s conside red an a c complice , Smith

must show that “in the context of the entire trial, the failure to instruct the

jury to carefully consider [the witness’] credibility as an accomplice ‘had

the effect of rendering the trial so fundamentally unfair as to cause denial of

a fair trial.’” Foster v. Ward, 182 F.3d 1177, 1193 (10th Cir. 1999). The

district court properly concluded that Smith failed to meet this heavy

burd en. 

In his eighth ground, Smith asserts he was denied due process by the

admission of highly pre judic ia l and irre levant photographs of the vic tim. 
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On habeas review, this court considers only “whether the admission of the

photographs rendered the proceedings fundamentally unfair.” Smallwood v.

Gibson , 191 F.3d 1257 , 1275 (10th Cir. 1999 ). Cou rts should use

“con siderable self-restraint” when undertaking a fu nd amental fairness

analysis. Id. Becaus e the photographs demonstrated the location,

condition, and position of the victim’s body at the scene of the shooting and

corroborated testimony regarding the circumstances of the murde r, the

district court was correct in finding that their admission was probative and

did not ren der Smith’s trial fu ndamen tally unfa ir.

Finally, Smith’s ninth ground asserts that the cumulative effect of the

alleged errors rendered his trial fundamentally unfair. Cumulative error

analysis “does not apply to the cumulative effect of non-errors,” and

requires at least two or more actual errors for relief. M oo re v. Reyno lds,

153 F.3d 1086, 1113 (10th Cir. 1998). Becaus e Smith has failed to show

tha t two or more a c tua l e rrors oc curr ed, this c la im is without me rit. 

To proceed in forma pauperis on appeal, Smith must show “a financial

inability to pay the required fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812

(10th Cir. 1997) (c ita tions om itted). Upon review of Sm ith’s a ffidavit, we

conclude that he is not entitled to proceed in forma pauperis becaus e he has
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not pre sented a nonfrivolous a rgument on appe a l.

Smith has failed to make a substantial showing of the denial of a

constitutiona l right a s to any of his nine grounds for re lie f. Ac cordingly, we

DENY his req uest fo r a COA an d DISM ISS the matter. We DENY Smith’s

motion to proc e ed in forma paupe ris and remind him tha t the f e e for this

appe a l rema ins due . 

Entered fo r the Court

M ary Beck Briscoe

Circuit Judge