## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 2 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN CLAY MARSHALL, Petitioner - Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent - Appellee. No. 04-5134 (D.C. No. 01-CV-603-H (M)) (N.D. Okla.)

ORDER

Before EBEL , McKAY and HENRY , Circuit Judges.
Steven Clay Marshall (“Petitioner”), a state prison er appearing pro se , seeks a certificate of appealability (“COA”) to cha llenge the district court’s denial of his Petition for Writ of Habeas Corpus, which wa s brought pursuant to 28 U.S.C. § 2254 (2000). For the reasons stated below , we DENY COA and DISMISS the appeal. BACKGROUND Petitioner was charged in Oklahoma state court with abuse of a minor child, to which he pled not guilty. (Tr. v. I, at 5.) At trial, Petitioner maintained that the injuries to the child occurred accidentally. (Id. at 9-10.) During the defense case-in-chief, Petitioner called Janetta Williams, his cousin, as a witness. (Id. v.1 According to the trial transcripts, the prior convi ctions involved one

Steven D. Marshall, a white male who was 30 years o ld. (Tr. v. II at 97-100.) Petitioner, a black male, is named Steven C. Marshall and was 28 years old at the time of trial. (Id. at 100.) - 2 - 2, at 84.) Williams testified, interalia , that she was comfortable leaving her own daughter in Petitioner’s care and that she had neve r in the past had any concerns about Petitioner’s ability to care for her children

. (Id. at 92-93.) On cross examination, the prosecutor attempted to get Willia ms to change her opinion of Petitioner by bringing up what were alleged to be s everal of Petitioner’s prior convictions from Illinois. (Id. at 96-97.) Williams, however, did not change her position. ( Id. ) On re-direct examination, Petitioner’s lawyer es tablished that the prior convictions actually involved another individ ual with a different name, different age, and different race. 1 (Id. at 97-100.) On re-cross examination, the prosecutor pointed out that Petitioner was from Ill inois and that the birth date on some of the documents matched Petitioner’s birth date. (Id. at 101-02.) The jury found Petitioner guilty and recommended a sentence of thirty-five years’ imprisonment, which the trial court imposed. (R.O.A. doc 6, at 2.) On direct appeal, Petitioner challenged, inter alia, t he state’s cross examination of Williams as “exceed[ing] the permissible bounds of impeachment with evidence of prior bad acts.” Although at trial the state ap peared to contend that the former convictions were authentic, the prosecutor conceded on appeal that the prior- 3 -

convictions reflected a defendant with a “differentname, different birthdate, different age, and different race.” (R.O.A. doc. 3, ex. B, at 4.) The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitio ner’s conviction and sentence, holding that admission of the prior convi ctions was harmless error. (Id. , ex. C, at 2.) Petitioner timely filed a petition for habeas corpu s relief in district court, pursuant to 28 U.S.C. § 2254, in which he argued th at the admission of the prior convictions denied him due process under the Fourte enth Amendment. (Id. , doc. 1.) After finding that Petitioner had adequately exha usted his state court remedies, the district court held that the erroneou s admission of the prior convictions, when viewed in light of other evidence presented at trial, the jury instructions, and defense counsel’s re-direct exami nation, did not rise to the level of a due process violation. (Id. , doc. 6, at 5-6.) Accordingly, the court dismissed the petition. (Id. ) DISCUSSION Under 28 U.S.C. § 2253(c)(1), this court lacks juri sdiction to consider the merits of Defendant’s appeal unless he first obtain s a COA. In the instant case, Defendant seeks a COA from this court because the d istrict court denied his request to appeal its decision. See Fed. R. App. P. 22(b)(1); (R.O.A. doc. 11, at 2.) . To prevail on his COA request, Defendant must ma ke “a substantial showing- 4 -

of the denial of a constitutional right.” 28 U.S.C . § 2253(c)(2). This is accomplished by establishing that “reasonable juris ts 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 t o deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 483-484 (2000) (quotations omitted). We hold that Defendant has failed to meet the Slackstandard. Under 28 U.S.C. § 2254(d), Petitioner may only obtain federa l habeas relief if the state decision “was contrary to, or involved an unreasona ble application of, clearly established Federal law, as determined by the Supre me Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedin g.” On habeas review, we will not disturb the state cou rt’s evidentiary rulings on Due Process grounds unless the court’s error was “so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee , 501 U.S. 808, 825 (1991); accordFox v. Ward , 200 F.3d 1286, 1296-97 (10th Cir. 2000). Petitioner simply cannot meet this burden. Althoug h the mention of prior convictions that did not belong to Petitioner was n o doubt improper, we are mindful that the discrepancies were quickly drawn t o the jury’s attention by Petitioner’s counsel. Furthermore, the prosecutor was unsuccessful in changing- 5 -

the testimony of the witness. We are unable to say that the admission of the convictions rendered the trial so “unduly prejudici al” as to constitute a violation of due process. Payne , 501 U.S. at 825. Accordingly, Petitioner cannot demonstrate that the OCCA’s decision to affirm his conviction was “was contrary to, or involved an unreasonable application of, cle arly established Federal law, as determined by the Supreme Court of the United State s.” 28 U.S.C. § 2254(d)(1). In conclusion, we remain unconvinced that reasonabl e jurists could debate that Defendant’s § 2254 motion should have been res olved differently. See Slack , 529 U.S. 483-44. Accordingly, we DENY COA and DISMISS the appeal for substantially the reasons stated below. ENTERED FOR THE COURT

David M. Ebel Circuit Judge