PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JULIUS DARIUS JONES, 

 Petitioner - Appellant, 

v. 

MAURICE WARRIOR, Interim Warden, 

Oklahoma State Penitentiary,

 

 Respondent - Appellee. 

No. 13-6141 

_________________________________ 

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:07-CV-01290-D)

_________________________________ 

Madeline S. Cohen, Assistant Federal Public Defender, Office of the Federal Public 

Defender, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Denver, 

Colorado, and Mark Barrett, Barrett Law Office, Norman, Oklahoma, with her on the 

briefs), for Petitioner-Appellant. 

Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General of 

Oklahoma, with her on the brief) Office of the Attorney General for the State of 

Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee. 

_________________________________ 

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

MORITZ, Circuit Judge. 

_________________________________ 

 

 Pursuant to Fed. R. App. 4(c)(2) Anita Trammell is replaced by Maurice 

Warrior, as Interim Warden of the Oklahoma State Penitentiary, effective October 28, 

2015. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 10, 2015

Elisabeth A. Shumaker 

Clerk of Court

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An Oklahoma jury convicted Julius Jones of felony murder and sentenced him 

to death for shooting and killing Paul Howell in the course of stealing Howell’s 

Chevrolet Suburban. After the Oklahoma Court of Criminal Appeals (OCCA) 

rejected his direct appeal and application for post-conviction relief, Jones filed a 

federal habeas petition challenging his conviction and sentence on the basis of 

ineffective assistance of counsel. Specifically, he complained that his trial counsel 

made no effort to corroborate a lead that Christopher Jordan—Jones’ co-defendant 

and the State’s main witness at Jones’ trial—admitted to shooting Howell and 

pinning the crime on Jones to avoid the death penalty. The district court denied 

Jones’ petition and his request for a certificate of appealability (COA). We granted 

Jones a COA on this one ineffective-assistance-of-counsel issue. But because Jones 

fails to satisfy 28 U.S.C. § 2254(d), we cannot grant relief. Accordingly, we affirm. 

BACKGROUND

In late July 1999, on returning from an evening of shopping for school 

supplies and eating ice cream with his two young daughters and sister, Howell was 

shot and killed in his parents’ driveway while getting out of his Chevrolet Suburban. 

Howell’s sister, Megan Tobey, heard a gunshot as she exited the passenger side of 

the vehicle. She turned to face her brother and saw a young black male standing 

beside the vehicle’s open driver’s side door. Tobey watched as the man—who wore a 

white T-shirt, a red bandana over his face, and a black stocking cap on his head—

demanded that Howell give him the keys to the Suburban. Tobey could see “about a 

half an inch to an inch” of the man’s hair between his stocking cap and “where his 

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ear connect[ed] to his head.” Trial Tr. Vol. 4, at 117:4-5, 16. But she didn’t see 

braids or corn rows. 

Tobey quickly pulled Howell’s daughters out of the Suburban’s back seat. As 

she ran with the children through her parents’ carport she heard someone yelling at 

her to stop, followed by a second gunshot. Howell’s parents ran outside and found 

their son lying in the driveway. His Suburban was gone. Howell died a few hours 

later from a single gunshot wound to the head. 

Shortly after the shooting, Jordan arrived at Ladell King’s apartment driving 

Jordan’s 1972 Oldsmobile Cutlass. Jones arrived about 15 or 20 minutes later driving 

Howell’s Suburban and wearing a white T-shirt, a red bandana, a stocking cap, and 

gloves. He warned King not to touch the Suburban and asked him to find someone to 

buy it. King’s neighbor saw Jones and King checking out the Suburban that night. 

The next day, Jones drove the Suburban from King’s apartment to a 

convenience store parking lot on the south side of Oklahoma City near Kermit 

Lottie’s auto body shop. King hoped to sell Lottie the Suburban, but Lottie refused to 

buy it. The convenience store’s surveillance video from that day confirmed that both 

King and Jones briefly entered the convenience store. Oklahoma City detectives 

found the Suburban in the store’s parking lot the next day. 

Later that night—the night after the shooting—Jones and Jordan returned to 

see King, and Jones confessed to shooting Howell. Jones told King that as he walked 

up to Howell’s Suburban, a young girl in the backseat waved at him, Howell’s door 

opened, and the gun “went off.” Trial Tr. Vol. 5 at 189-90. 

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When Oklahoma City police found Howell’s Suburban they canvassed the area 

to determine who left it there. On a hunch, officers first visited Lottie’s auto body 

shop, just four blocks from where officers found the vehicle. Lottie told detectives 

that King and at least one other person attempted to sell him Howell’s stolen 

Suburban the day after the shooting. Because Lottie recognized the Suburban from 

news reports describing Howell’s stolen vehicle, he refused to buy it. When police 

tracked down King later that day, he provided them with a phone number and address 

for Jones at Jones’ parents’ house. 

Upon arriving at Jones’ parents’ house an officer called the phone number for 

Jones that King had provided, and Jones answered. The officer told Jones that the 

Oklahoma City Police Department had surrounded the house and wanted to talk to 

him about Howell’s murder. Jones agreed to come out and talk, but instead left the 

house through a second-floor window, evaded officers attempting to secure the 

perimeter of the house, and fled. 

Officers obtained warrants to search the house and arrest Jones. In Jones’ 

bedroom, detectives discovered a white T-shirt with black trim and a black stocking 

cap—items that matched both Tobey’s description of the shooter’s clothing and 

King’s description of Jones’ clothing shortly after the shooting. Officers also found a 

chrome-plated Raven .25-caliber semiautomatic pistol wrapped in a red bandana and 

hidden in the attic space above the ceiling of the closet in Jones’ room. And hidden 

behind the cover of the doorbell chime, officers discovered a loaded .25-caliber 

magazine belonging to the gun they had just found. The gun matched Jones’ 

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girlfriend’s description of one she saw in Jones’ possession during the summer of 

1999. Both the bullet found lodged in Howell’s head and the bullet shot into the 

Suburban’s dashboard matched the bullets and the gun found in Jones’ bedroom. 

They also matched bullets found in Jones’ car. 

Two days after the shooting, officers arrested Jordan. After an extensive 

citywide search, officers found and arrested Jones the following morning. The State 

of Oklahoma charged Jones and Jordan with first-degree felony murder and 

conspiring to commit a felony. The State also charged Jones with being a felon in 

possession of a firearm. 

Trial—Guilt Phase 

Jordan pleaded guilty and agreed to testify against Jones at trial in exchange 

for a life sentence, all but the first 30 years of which was suspended. Jordan testified 

that on the day of the shooting, he and Jones went cruising around a suburb of 

Oklahoma City in Jordan’s Oldsmobile Cutlass, looking for a Suburban to steal. 

Jordan drove, while Jones rode in the passenger seat. The two spotted Howell’s 

Suburban in the drive-through of a local Braum’s ice cream shop. 

Michael Ray Peterson was in Braum’s parking lot around the time Howell 

went through the drive-through. Peterson and his wife were seated on the curb in 

front of the store eating ice cream when Peterson noticed two black males in their 

early twenties circling the lot in an Oldsmobile Cutlass. The driver’s hair was in corn 

rows and one of the two men wore a white T-shirt. The Cutlass eventually backed 

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into a parking space, where it sat with the motor running for a few minutes before 

leaving in a hurry. 

Jordan testified that when Jones saw someone—perhaps Peterson—“looking 

[their] way,” the two men left Braum’s parking lot and waited at a stop light for 

Howell’s Suburban to drive past them. Trial Tr. Vol. 8, at 161. When it did, Jordan—

who was still driving—followed the Suburban to Howell’s parents’ neighborhood. At 

that point, the two men possessed a clear plan: Jones would take the Suburban at 

gunpoint. 

When it appeared Howell was about to pull into a driveway, Jordan stopped 

his car and Jones got out carrying a gun and wearing a stocking cap, a bandana, and 

gloves. Jordan heard a gunshot and ran to where he could see Howell slumped on the 

ground. He then heard a second shot and saw Jones patting Howell as if looking for 

the Suburban’s keys. Jordan watched as Jones got into the Suburban and backed it 

out of the driveway. The two men then left the scene—Jordan in his Cutlass, Jones in 

Howell’s Suburban—and traveled to King’s apartment. 

Jones’ defense at trial was that Jordan shot Howell, possibly with King as his 

accomplice, and that Jordan was blaming Jones to save his own life. The jury 

convicted Jones of all three counts. 

Trial—Punishment Phase 

For the crime of first-degree felony murder, the jury imposed the death penalty 

after finding two aggravating circumstances: (1) Jones knowingly created a great risk 

of death to more than one person; and (2) “there exist[ed] the probability that [Jones] 

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would commit criminal acts of violence that would constitute a continuing threat to 

society.” Jones v. State, 128 P.3d 521, 532 (Okla. Crim. App. 2006). In support of the 

continuing-threat aggravator, the State presented evidence of Jones’ involvement in 

several unadjudicated crimes, including attempting to elude a police officer, 

unauthorized use of a motor vehicle and possession of a firearm during the 

commission of a felony, armed robbery of a jewelry store, two armed carjackings in 

July 1999 at an Oklahoma City restaurant, and a physical altercation with a detention 

officer. 

Direct Appeal 

Jones appealed his convictions and death sentence to the OCCA. He asserted 

numerous claims of error, including that his trial counsel, David McKenzie, was 

ineffective for failing to call Emmanuel Littlejohn as a witness. Littlejohn was a 

“multiple felon and convicted murderer” who briefly shared a jail cell with Jordan 

while Littlejohn awaited resentencing in his own capital murder case. Id. at 546. 

Before Jones’ February 2002 trial, “Littlejohn told defense investigators that 

Jordan admitted he was falsely throwing blame on Jones, that Jordan said Jones was 

not involved in the Howell murder at all, and that Jordan had even gone so far as to 

hide the murder weapon and other incriminating evidence in the Joneses’ home 

himself.” Id. Littlejohn submitted to a polygraph test regarding these statements, but 

the results were inconclusive. After interviewing Littlejohn and speaking to 

Littlejohn’s attorney about his credibility, McKenzie concluded Littlejohn was a 

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“pathological liar” who lacked credibility, and declined to call him as a witness. 

McPhail Aff., Direct Appeal Mot. to Supplement, at 3, ¶ 15. 

Because “defense counsel actually did investigate Littlejohn’s claim before 

trial,” the OCCA found that Jones’ argument pertained to “trial strategy which, as 

Strickland instructs, is much more difficult to attack.” Jones, 128 P.3d at 546. 

Denying Jones’ claim, the OCCA found “nothing unreasonable about counsel’s 

decision to forgo Littlejohn’s assistance.” Id. 

After rejecting all Jones’ claims of error, the OCCA affirmed his convictions 

and death sentence. Id. at 552. The OCCA later granted Jones’ motion for rehearing 

but denied his request to recall the mandate. Jones v. State, 132 P.3d 1, 3 (Okla. 

Crim. App. 2006). The United States Supreme Court denied Jones’ petition for 

certiorari. Jones v. Oklahoma, 127 S. Ct. 404 (2006). 

State Post-Conviction Proceedings 

Jones next sought post-conviction relief from his convictions and death 

sentence in state court. As relevant here, Jones’ application for post-conviction relief 

claimed McKenzie was ineffective for failing to investigate whether anyone could 

corroborate Littlejohn’s assertion that Jordan had confessed to being the shooter. In 

particular, Jones focused on Christopher Berry, an inmate who at the time of Jones’ 

trial was being held in the Oklahoma County Jail on a charge of “Child Abuse 

Murder”—a crime for which he eventually received a life sentence. Opinion Denying 

App. for Post-Conviction Relief & Related Motions, No. PCD-2002-630 (Okla. Crim. 

App. Nov. 5, 2007) (OCCA Post-Con. Op.) at 10. Because McKenzie also 

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represented Berry at the time of Jones’ trial, Jones argued it was particularly 

unreasonable for McKenzie not to ask Berry if he had heard anything about Jones’ 

case. 

In support of his ineffective-assistance-of-counsel claim, Jones submitted 

affidavits from Littlejohn and Berry. Littlejohn’s affidavit repeated what he told 

McKenzie before Jones’ trial—that while he and Jordan were cellmates, Jordan told 

him, “Julius didn’t do it” and “Julius wasn’t there.” Littlejohn Aff., Doc. 22-5, at 1, ¶ 

9. According to Littlejohn, Jordan confessed “that [Jordan] had wrapped the gun used 

to commit the murder in his case in a bandana and hidden it in Julius Jones’ house,” 

and that Jordan “felt guilty because he was going to implicate his co-defendant, 

Julius Jones, in a murder case to avoid getting the death penalty.” Id. at ¶¶ 7, 8. 

Berry’s affidavit said that Berry met Jordan while the two were housed at the 

Oklahoma County Jail, where they shared the same cell pod1

 for about two years. 

Berry said he overheard Jordan tell an inmate named “Smoke” that “[Jordan] was the 

actual person who shot the victim in his case,” and that “because [Jordan] was the 

first to talk to the police, he was getting a deal and would not get the death penalty” 

while “his partner in the case was charged with capital murder.” Berry Aff., Doc. 22-

6, at 1, ¶ 5. According to Berry, Jordan liked to brag about shooting Howell. Berry 

admitted that he “didn’t tell [his] attorney, David McKenzie,” about this, but stated 

 1

 A cell pod “is an inmate housing area divided into manageable size units 

typically with single occupancy cells clustered around a common area and secure 

control booth.” Hill v. Curcione, 657 F.3d 116, 118 n.1 (2d Cir. 2011). 

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that he “did try to talk to him about it,” and “Mr. McKenzie didn’t seem interested in 

it.” Id. at 2, ¶ 7. 

The OCCA rejected Jones’ claim of ineffective assistance of counsel because 

“Berry suffer[ed] from the same credibility problems that Littlejohn did”; his 

statement did not “necessarily ‘corroborate[]’ Littlejohn’s”; and the “inmates’ claims 

show[ed] only one thing: that Christopher Jordan changed his story to suit his own 

needs,” which “was already clear to the jury, through [McKenzie’s] extensive crossexamination of Jordan.” OCCA Post-Con. Op. at 10-11. 

Federal Habeas Proceedings 

Seeking federal habeas relief from his convictions and death sentence, Jones 

asserted eight grounds for relief, including that McKenzie was ineffective for not 

attempting to corroborate Littlejohn’s statement, and for not investigating Berry in 

particular. The district court rejected all eight grounds for habeas relief, and denied 

Jones’ request for a COA. 

We granted Jones a COA on just one issue: whether Jones’ trial counsel was 

ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to 

determine whether it could be corroborated. Our jurisdiction is therefore limited to 

this issue. See 28 U.S.C. § 1291; 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 

537 U.S. 322, 335-36 (2003). 

DISCUSSION

Jones argues that McKenzie acted unreasonably in failing to attempt to 

corroborate Littlejohn’s statement that Jordan confessed to shooting Howell. He also 

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contends McKenzie was ineffective for not investigating Berry directly because even 

though Berry “didn’t tell” McKenzie that he overheard Jordan claiming to be the 

shooter, Berry “did try to talk to [McKenzie] about it.” Berry Aff., Doc. 22-6, at 2, ¶ 

7. Essentially, Jones argues that a reasonable attorney in McKenzie’s shoes would 

have attempted to corroborate Littlejohn’s statement and in the process of doing so, 

would have discovered that Berry could corroborate Littlejohn’s account. Jones 

further postulates that a reasonable attorney, having discovered Berry, would have 

called him as a witness, and might have reconsidered calling Littlejohn as a witness, 

which would have changed the outcome of both the guilt and sentencing phases of his 

trial. 

To establish ineffective assistance of counsel (IAC) under the Sixth and 

Fourteenth Amendments, a claimant must show two things: (1) deficient 

performance—that trial counsel’s conduct was objectively unreasonable; and (2) 

resulting prejudice—“a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 688, 694 (1984). 

But to obtain federal habeas relief from a state court decision rejecting an 

ineffective-assistance claim on the merits, a petitioner must first show that the statecourt’s decision was “contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme 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 proceeding.” 28 U.S.C. § 2254(d). In determining 

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whether Jones is entitled to habeas relief, “‘we review the district court’s legal 

analysis of the state court decision de novo’ and its factual findings, if any, for clear 

error.” Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014) (quoting Byrd v. 

Workman, 645 F.3d 1159, 1165 (10th Cir. 2011)). Our review is limited to the record 

that was before the OCCA when it adjudicated his IAC claim. See Cullen v. 

Pinholster, 131 S. Ct. 1388, 1398 (2011). 

Jones contends the OCCA’s rejection of his IAC claim satisfies § 2254(d) 

because the court’s analysis of Strickland’s performance prong is both (1) contrary to 

clearly established law and (2) based upon an unreasonable determination of the 

facts.2

 But we’re not entirely convinced the OCCA analyzed Strickland’s 

performance prong at all. Contrary to Jones’ argument, we think it more likely the 

OCCA rejected Jones’ IAC claim solely under Strickland’s prejudice prong. 

Nevertheless, even assuming Jones is correct that the OCCA based its decision on a 

 2

 The State contends Jones “waived” his contrary-to and unreasonabledetermination-of-the-facts arguments because he didn’t raise them below. 

Aplee. Br. 13, 17. While we ordinarily decline to address arguments not raised by a 

habeas petitioner in district court, Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 

2000), we have discretion to consider arguments a petitioner raises for the first time 

on appeal. See United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007). We 

exercise that discretion here. But we draw the line at Jones’ opening brief. Thus, we 

decline to consider Jones’ counsel’s suggestion, made for the first time at oral 

argument, that we should treat Jones’ contrary-to and unreasonable-determination-ofthe-facts arguments as also raising a claim under § 2254(d)(1) that the OCCA 

unreasonably applied clearly established law. See Williams v. Taylor, 529 U.S. 362, 

405 (2000) (noting that the “contrary to” and “unreasonable application” clauses of § 

2254(d)(1) have “independent meaning”); Hancock v. Trammell, 798 F.3d 1002, 

1016-17 (10th Cir. 2015) (petition for rehearing pending) (refusing to consider 

petitioner’s “unreasonable application” argument when he raised it for first time at 

oral argument). 

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finding that trial counsel’s performance was not deficient, we conclude Jones fails to 

demonstrate the OCCA’s decision is either (1) contrary to clearly established law or 

(2) based on an unreasonable determination of the facts. 

I. Jones fails to demonstrate the OCCA’s decision is contrary to 

clearly established Federal law. 

A state-court decision is “contrary to” clearly established law if it (1) “applies 

a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or 

(2) “confronts a set of facts that are materially indistinguishable from a decision of 

th[e] Court and nevertheless arrives at a result different from [its] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Jones rests his contrary-to 

argument on the first prong of this definition. He argues that “a lawyer’s failure to 

pursue a line of investigation calls for a very different analysis” than does “a 

lawyer’s informed, strategic decision.” Aplt. Br. 30. And he insists that rather than 

applying that “very different analysis” to his failure-to-investigate claim, the OCCA 

instead “applied the far more forgiving and deferential analysis that applies to 

counsel’s informed strategic decisions.” Id. at 30-31. 

But a rule only “contradicts” governing law if it is “‘diametrically different,’ 

‘opposite in character or nature,’ or ‘mutually opposed’” to the Supreme Court’s 

“clearly established precedent.” Williams, 529 U.S. at 405 (quoting Webster’s Third 

New International Dictionary 495 (1976)). The OCCA’s articulation of Strickland’s 

performance prong doesn’t fit this description. 

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In considering Jones’ IAC claim, the OCCA correctly identified Strickland as 

the controlling legal authority. OCCA Post-Con. Op. at 2-3. And it explained that for 

Jones to prevail on the performance prong of his IAC claim, he had to show that 

“trial counsel failed to conduct a reasonably thorough investigation into witnesses 

potentially favorable to the defense.” Id. at 11. This language—which focuses on the 

reasonableness of counsel’s failure to investigate—is hardly diametrically different 

from the language the Court used in Strickland. There, the Court explained that “a 

particular decision not to investigate must be directly assessed for reasonableness in 

all the circumstances, applying a heavy measure of deference to counsel’s 

judgments.” Strickland, 466 U.S. at 690-91. In fact, the OCCA’s language doesn’t 

even contradict Jones’ own articulation of the relevant test. See Aplt. Br. 30 (stating 

that the “overarching question is whether the failure to investigate was ‘reasonable’ 

under prevailing professional norms”). 

The OCCA analyzed Jones’ claim as follows: 

[Jones] claims trial counsel was ineffective for failing to 

investigate and present two witnesses at trial . . . . Specifically, [he] 

claims the testimony of Christopher Berry [and a longtime 

acquaintance of Jones’] could have made a difference in the outcome of 

the trial. At the time of [Jones’] trial, Berry was being held in the 

Oklahoma County Jail on a charge of Child Abuse Murder. He was 

later convicted of that charge and sentenced to life in prison without 

possibility of parole. Berry claims, by affidavit, that he overheard 

[Jones’] co-defendant, Christopher Jordan, boasting that he, not 

[Jones], was the triggerman in the homicide with which they were 

jointly charged. 

[Jones] made a similar claim on direct appeal alleging trial 

counsel was ineffective for not presenting the testimony of another jail 

inmate, Emmanuel Littlejohn, who also allegedly heard Jordan boast 

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about being the triggerman. We rejected that claim, because the 

inmate’s credibility was suspect and the details of the account were 

specious. Berry suffers from the same credibility problems that 

Littlejohn did. Nor do we agree with [Jones’] argument that Berry’s 

claim necessarily ‘corroborates’ Littlejohn’s. Berry’s affidavit suggests 

that Jordan admitted [Jones] was involved in the murder, while 

according to Littlejohn, Jordan denied that [Jones] had any involvement. 

Taken together, these inmates’ claims show only one thing: that 

Christopher Jordan changed his story to suit his own needs. Yet this 

much was already clear to the jury, through trial counsel’s extensive 

cross-examination of Jordan, who testified against [Jones] at trial. 

OCCA Post-Con Op. at 10-11 (citations omitted). 

In arguing this decision is contrary to clearly established law, Jones focuses 

solely on the OCCA’s statement characterizing his post-conviction failure-toinvestigate claim as “similar” to his direct-appeal failure-to-call claim. Id. at 10. He 

points out that on direct appeal the OCCA rejected his failure-to-call claim by noting 

that McKenzie “investigate[d] Littlejohn’s claim before trial,” which “reduce[d] 

Jones’s argument to one over trial strategy,” and made the decision “much more 

difficult to attack.” Jones, 128 P.3d at 546, ¶ 82. According to Jones, the OCCA 

erred in treating counsel’s failure to investigate as similarly “difficult to attack,” id., 

and as “‘virtually unchallengeable,’” Aplt. Br. 28 (quoting Strickland, 466 U.S. at 

690). 

Despite characterizing the two claims as “similar,” the OCCA demonstrated it 

understood the difference between them. It correctly described Jones’ post-conviction 

claim as addressing whether “trial counsel was ineffective for failing to investigate

and present two witnesses at trial.” OCCA Post-Con. Op. at 10 (emphasis added). 

And it accurately restated Jones’ direct-appeal claim as “alleging trial counsel was 

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ineffective for not presenting the testimony of another jail inmate.” Id. Moreover, in 

rejecting his post-conviction IAC claim, the OCCA made no mention of the more 

deferential “virtually unchallengeable” standard Jones claims it applied. Instead, as 

discussed above, the OCCA correctly framed the relevant inquiry as whether “trial 

counsel failed to conduct a reasonably thorough investigation into witnesses 

potentially favorable to the defense.” Id. at 11. 

Assuming the OCCA applied Strickland’s performance prong at all, we see no 

reason to conclude it applied a test other than the correct one that it expressly stated. 

Thus, Jones fails to demonstrate the OCCA’s rejection of his IAC claim is contrary to 

clearly established law. 

II. Jones fails to demonstrate the OCCA’s decision is based on an 

unreasonable determination of the facts. 

For similar reasons, we reject Jones’ suggestion that the OCCA “implicit[ly]” 

found McKenzie made an informed strategic decision not to attempt to corroborate 

Littlejohn’s account. Aplt. Br. 29. 

Jones relies on the OCCA’s statements that “Berry suffer[ed] from the same 

credibility problems that Littlejohn did,” and that Berry’s statement did not 

“necessarily ‘corroborate[]’ Littlejohn’s” as support for this suggestion. OCCA PostCon. Op. at 10. But as even Jones concedes, it’s “not entirely clear from [the 

OCCA’s] opinion” that the OCCA made a factual finding that McKenzie made a 

strategic decision not to interview Berry about Jordan. Aplt. Br. 29. Instead, we think 

the OCCA’s statements about Berry’s lack of credibility and the inconsistencies 

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between Berry’s statement and Littlejohn’s go to the OCCA’s determination that 

McKenzie’s failure to discover and call Berry as a witness did not undermine the 

outcome of Jones’ trial. See Wong v. Belmontes, 558 U.S. 15, 19-20 (2009) 

(explaining that to show prejudice based on failure to investigate, defendant must 

establish reasonable probability that competent attorney aware of available evidence 

would have introduced the evidence and jury would have returned different verdict as 

a result).

Because we’re not convinced the OCCA made the implicit factual finding 

Jones argues is unreasonable, we decline to conclude the OCCA “‘plainly 

misapprehend[ed] or misstate[d] the record’” in addressing Jones’ claim that 

McKenzie was ineffective for not seeking to corroborate Littlejohn’s statement. Byrd 

v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011) (quoting Taylor v. Maddox, 

366 F.3d 992, 1001 (9th Cir. 2004)). Thus, Jones has not satisfied the “‘daunting 

standard’” for showing that the OCCA based its decision on an unreasonable 

determination of the facts. Id. at 1172 (quoting Taylor, 366 F.3d at 1000).

CONCLUSION

Jones’ failure to establish the OCCA’s decision was contrary to clearly 

established law or based on an unreasonable determination of the facts prevents us 

from granting relief. See Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015) 

(explaining habeas courts can’t grant relief “‘with respect to any claim that was 

adjudicated on the merits in State court’” unless state court’s adjudication satisfies 

§ 2254(d)). So we need not address whether, if we applied de novo review, we would 

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conclude McKenzie’s failure to investigate Berry resulted in prejudice. See id. at 

1006, 1024 (concluding court couldn’t reach merits of petitioner’s IAC claim because 

petitioner failed to demonstrate state court unreasonably applied Strickland). We 

therefore affirm the district court’s denial of habeas relief on Jones’ claim that trial 

counsel provided ineffective assistance of counsel by failing to investigate and 

develop corroboration for Littlejohn’s statement. 

We also deny Jones’ motion to expand the COA to include several additional 

claims of ineffective assistance of counsel and a prosecutorial misconduct claim. 

After reviewing the motion, we conclude that reasonable jurists would not find the 

district court’s decision on these issues debatable or wrong. See Miller-El, 537 U.S. 

at 335-36. Finally, because Jones fails to satisfy § 2254(d), we deny his request for 

an evidentiary hearing. See Pinholster, 131 S. Ct. at 1401.

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