FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                  September 18, 2007
                                   TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 B RIA N H O LLO M A N ,

                 Petitioner-A ppellant,                   No. 07-8019
          v.                                              (D . of W yo.)
 ED GONZALES, Bill Clayton                        (D.C. No. 06-CV-154-ABJ)
 D etention C enter Warden, R .O .
 LAM PERT, Director, W yoming
 Department of Corrections, and
 PATRICK CRANK, Attorney General,
 State of Wyoming,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      B rian H olloman, a state prisoner, seeks a certificate of appealability (COA )

to challenge the district court’s denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254. Holloman argues the state trial court violated his due




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
process rights in two ways: (1) by refusing to admit evidence of his victim’s and a

witness’s criminal histories; and (2) by allowing the state to present inadmissible

character evidence about him. Because Holloman has made no substantial

showing of the denial of a constitutional right, we deny the COA and dismiss the

appeal.

                                  I. Background

      Holloman was convicted in W yoming state court of first degree murder and

sentenced to life in prison. The charges arose from events of July 25, 1999 in

Cheyenne. Holloman arrived in Cheyenne by freight train on July 24 and spent

the day drinking. During an altercation that night, Holloman was injured when

another man cut his face with a broken beer bottle. Holloman was treated at a

hospital, receiving two layers of stitches, and spent the night in a detoxification

facility. W hen he w as released the next morning, he w ent to a liquor store w here

he met Doug Johnson, the victim, and Herman Thunder H awk, a w itness to

Johnson’s death. Neither Thunder Hawk nor Johnson had been involved in the

fight the previous night.

      Thunder Hawk, Johnson, and Holloman bought beer and vodka and went to

Thunder H aw k’s apartment in room 302 of the Idelman Hotel in downtown

Cheyenne. The three drank all day, going out to buy more vodka around

2:00 p.m. At some point, they all passed out. Thunder Hawk testified that he

woke up later that evening and spent about fifteen minutes in the bathroom,

                                         -2-
during which time he did not hear any commotion in the other room. W hen he

came out, he saw Johnson hanging out the window and Holloman holding him by

the legs and preventing him from climbing back into the room. It was around

7:00 p.m. and the street was busy with people attending Cheyenne Frontier D ays.

Numerous witnesses testified at trial identifying Holloman as the man holding

Johnson out the window. After about five minutes, Holloman let go and Johnson

fell to his death. W hen the police arrived and apprehended Holloman and

Thunder Hawk, Holloman made a number of statements indicating he meant to

kill Johnson. At the time, Holloman’s blood alcohol content was .33. Thunder

Hawk’s was .27, and Johnson’s was .36.

      At trial, Holloman argued to the jury that Johnson’s death was a

combination of self-defense and accident. He testified that he awoke to loud

music and got up to turn it off. As he bent over, someone hit him in the face

where his wound had been stitched up the previous night. He was blinded and

disoriented by the pain, and when he was able to refocus, he saw Thunder Hawk,

assumed he was the attacker, and fought to defend himself. He did not see

Johnson and argues he must have accidentally knocked Johnson out the window in

the scuffle. The jury rejected Holloman’s version of events and convicted him of

murder. 1

      1
        This was the second guilty verdict for Holloman arising out of Johnson’s
murder. Holloman was also convicted at his first trial, but the W yoming Supreme
                                                                     (continued...)

                                         -3-
      Prior to trial, the court had granted the state’s motion in limine to exclude

criminal history evidence concerning Johnson and Thunder Hawk. Holloman

argued the evidence was relevant and admissible under W yoming Rules of

Evidence (W RE) 404(a) 2 to support his theory that Thunder Hawk or Johnson

attacked him. He also argued Thunder Hawk’s record was admissible to impeach

Thunder Hawk’s credibility as a witness under W RE 609. 3


      1
       (...continued)
Court reversed the conviction because the trial court had not instructed the jury
on the elements of self-defense.
      2
          W RE 404(a) provides:
       (a) Character evidence generally. — Evidence of a person's character or a
trait of his character is not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
              (1) Character of Accused. — Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut the same;
              (2) Character of Victim. — Evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or by the prosecution to rebut
the same, or evidence of a character trait of peacefulness of the victim offered by
the prosecution in a homicide case to rebut evidence that the victim was the first
aggressor;
              (3) Character of W itness. — Evidence of the character of a witness,
as provided in Rules 607, 608, and 609.
      3
         W RE 609 provides in pertinent part:
       (a) General rule. — For the purpose of attacking the credibility of a
witness, evidence that a witness other than an accused has been convicted of a
crime shall be admitted, subject to Rule 403, if the crime was punishable by death
or imprisonment in excess of one (1) year under the law under which the w itness
was convicted, and evidence that an accused has been convicted of such a crime
shall be admitted if the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; and evidence that any
witness has been convicted of a crime shall be admitted if it involved dishonesty
or false statement, regardless of the punishment.
                                                                       (continued...)

                                         -4-
      At trial, Holloman objected to the state’s use of prior acts evidence against

him. During opening statements, the prosecutor suggested the jury would hear

evidence that Holloman had attacked another man earlier on the day of the

murder. This evidence had been excluded in the first trial, and while the court

initially overruled the defense objection during opening statements, it later

excluded the actual evidence. Two witnesses also testified at trial about

Holloman’s statements and demeanor on July 24, the day prior to the murder

when he was attacked by someone other than Thunder Hawk and Johnson. The

gist of the testimony was that Holloman had a belligerent attitude, kept changing

his story, used an alias, made one witness uncomfortable, and meant to get even

with whoever had cut him. During closing argument, over repeated sustained

objections, the prosecutor argued that the events of July 24 gave the jury “an idea

as to the person of Brian Holloman.” Aplt. App. 288. Holloman argued all of



      3
        (...continued)
       (b) Time limit. — Evidence of a conviction under this rule is not admissible
if a period of more than ten (10) years has elapsed since the date of the conviction
or of the release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interests of justice,
that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect. However, evidence of
a conviction more than ten (10) years old as calculated herein, is not admissible
unless the proponent gives to the adverse party sufficient advance written notice
of intent to use such evidence to provide the adverse party with a fair opportunity
to contest the use of such evidence.


                                          -5-
this evidence was inadmissible evidence of other crimes, wrongs, or acts under

W RE 404(b). 4

                                 II. Procedural H istory

      The W yoming Supreme Court affirmed the conviction as a matter of

W yoming evidence law. Holloman’s petition for rehearing was denied on M arch

22, 2005. On June 19, 2006, Holloman filed a petition for a writ of habeas corpus

in the United States Court for the District of W yoming, pursuant to 28 U.S.C.

§ 2254. The district court denied the petition because the W yoming Supreme

Court fairly applied W yoming evidence law and any error did not amount to a

denial of due process. The district court also found Holloman failed to exhaust

his claim regarding the state’s introduction of inadmissible character evidence

against him because his arguments before the state court did not raise a

constitutional argument but instead focused on W yoming evidentiary rules. The

district court denied a C OA .

                                    III. Discussion

      To appeal the district court’s denial of his § 2254 petition, Holloman must

obtain a COA by making “a substantial showing of the denial of a constitutional



      4
         W RE 404(b) provides:
       (b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

                                           -6-
right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” M iller-El v. Cockrell, 

, 338 (2003).

Furthermore, Holloman must make a substantial showing that the state court

decision “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that 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. Because we find Holloman has

not made a substantial show ing that the state trial violated his due process rights,

we deny COA and dismiss the appeal.

A. Johnson’s and Thunder H awk’s Crim inal Records

      W hen reviewing a state court’s evidentiary rulings, any error, to warrant

habeas relief, must be “so grossly prejudicial that it fatally infected the trial and

denied the fundamental fairness that is the essence of due process.” Fox v. Ward,

, 1296 (10th Cir. 2000). Holloman argues the exclusion of

Johnson’s and Thunder Hawk’s criminal records violated his constitutional right

to present a defense because the evidence would have bolstered his claim that

either Johnson or Thunder Hawk was the first aggressor and that Johnson’s death

accidentally resulted from his justified efforts to defend himself.

      Holloman sought to introduce the following acts by Johnson:

                                          -7-
      1.    4th Degree Assault, 4/3/96 in Oregon, disposition unknown.
      2.    Carrying a Concealed W eapon, 6/18/80 in Oregon, convicted.
      3.    Aggravated Battery, 4/13/89, in New M exico, convicted.
      4.    Robbery (while armed with a deadly weapon), 4/13/89, in New
            M exico, convicted.
      5.    Obstructing a Peace Officer, 12/13/96, in M ontana, convicted.
      6.    Robbery, 12/15/91, in California, disposition unknown.
      7.    Use Drugs to Injure or Facilitate Crime, 8/17/85, in M innesota,
            disposition unknown.
      8.    Aggravated Robbery, 8/17/85, in M innesota, dismissed.
      9.    2nd and 3rd Degree Assault, 5/21/87, in M innesota, dismissed.
      10.   Fighting, 3/10/83, in California, disposition unknown.
      11.   Robbery, 12/15/91, California, disposition unknown.
      12.   Johnson’s membership in the Freight Train Riders of America, a
            gang known for its violent conduct.

Aplt. App. 263. He also sought to introduce the following acts by Thunder Hawk:

      1.    Robbery, assault and failure to appear convictions on 11/17/75.
      2.    Fraudulent use of a credit card conviction on 3/23/78.
      3.    Third Degree Sexual Assault conviction on 6/11/90.
      4.    Providing False Information on 3/21/93.

Aplt. App. 265. W e do not think Holloman has made a substantial showing that

the exclusion of this evidence was so fundamentally unfair as to deny him due

process.

      The trial court initially excluded evidence of Johnson’s distant criminal

past because it was so remote that its probative value was outweighed by the

danger of unfair prejudice. The court excluded evidence of Johnson’s

membership in a group with a reputation for violence as irrelevant to Johnson’s

personal reputation. The court similarly excluded three of Thunder H aw k’s

convictions as too remote, noting that even though W RE 609 provides additional



                                        -8-
grounds for admitting prior crimes evidence to attack the credibility of a w itness,

the rule also provides a time limit of ten years. 5 The W yoming Supreme Court

affirmed on the ground that Holloman’s offer of proof as to the prior convictions

was inadequate. Specifically, the supreme court held the trial court did not abuse

its discretion by excluding the evidence in limine because Holloman offered

inadequately developed evidence and the trial court did not foreclose Holloman’s

opportunity to raise the evidence again if it became appropriate. W hile Holloman

argued on direct appeal that the trial court did not reject the evidence for lack of

foundation, the supreme court noted it could “uphold the general ruling of the

court below if supported by any reasonable view of the evidence.” Aplt. App.

187 n.4 (citing Wyom ing v. Williams, 

, ¶ 12 (W yo. 2004)).

      Considering Holloman’s federal habeas petition, the federal district court

acknowledged that “state evidentiary determinations ordinarily do not present

federal constitutional issues unless the state court applies a state evidentiary rule

unfairly to prevent a defendant from presenting evidence that is critical to his

      5
         The trial court tentatively admitted Thunder Hawk’s 1993 false
information conviction, subject to adequate proof at trial. Holloman never
presented this evidence at trial, nor did the defense re-raise any of its criminal
history evidence, despite the court’s invitation to do so if the evidence developed
in such a way that might alter the court’s analysis. As the W yoming Supreme
Court noted, Holloman may have had a good tactical reason for not pursuing the
criminal history evidence further. Prior to trial, the court had also excluded
evidence of a prior manslaughter conviction on Holloman’s part. The court
discussed the possibility that admitting evidence of Johnson’s and Thunder
Hawk’s prior bad acts would open the door for admission of similar evidence
against Holloman.

                                          -9-
defense.” Aplt. App. 381 (quoting Romano v. Gibson, 

, 1166 (10th

C ir. 2001)). The district court determined the state court’s application of its own

evidence law was reasonable. Furthermore, the district court decided the state

court had not unfairly prevented Holloman from presenting evidence critical to

his defense because the suppression of the evidence did not affect the outcome.

See Ellis v. M ullin, 

, 1128 (10th Cir. 2002).

      W e agree Holloman has made no substantial showing that the exclusion of

the evidence cited deprived him of a constitutional right to present a defense.

Holloman argued his self-defense/accident theory to the jury, supported by his

testimony and evidence showing his bruised face. Nevertheless, as the jury

apparently found, the w eight of the other evidence makes H olloman’s theory

implausible, even if we consider the criminal backgrounds of Johnson and

Thunder H aw k. The evidence the state presented thoroughly rebutted Holloman’s

self-defense theory, particularly by establishing through eyewitnesses that

Holloman held Johnson out the window for a number of minutes before Johnson

fell to his death. Accordingly, because the decision of the W yoming courts was

not an unreasonable application of the Supreme Court’s due process precedent,

Holloman has made no substantial showing of the denial of a constitutional right

with regard to exclusion of evidence.




                                         -10-
B. Character Evidence About H ollom an

      Holloman argues his constitutional rights were violated when the

prosecutor introduced and argued irrelevant evidence about his conduct on the

day preceding Johnson’s death. The W yoming Supreme Court determined the

evidence was inadmissible because it had no relevance other than to show

Holloman was a “vengeful thug.” A plt. App. 191–92. The supreme court

nevertheless determined the error was harmless, given the weight of the evidence

against Holloman. On Holloman’s subsequent habeas petition, the federal district

court decided Holloman had failed to exhaust his constitutional argument in the

state court by insufficiently developing it on direct appeal. The district court

nevertheless w ent on to conclude that, even if Holloman had not waived his

claim, admission of such evidence did not deprive H olloman of due process.

      W e disagree with the district court that Holloman failed to exhaust his

constitutional claims in state court with regard to the state’s misuse of evidence.

Holloman specifically referred to his claim below as a violation of his due process

right to a fair trial. Furthermore, Holloman fully explained the factual allegations

supporting his claim for the state court to consider.

      On the other hand, we agree with the district court that any error did not

amount to a denial of due process. Holloman’s claim includes allegations that the

prosecutor knowingly argued inadmissible evidence to the jury and that the trial

court improperly admitted such evidence. Both arguments require us to determine

                                        -11-
whether the error so fatally infected the trial with unfairness as to violate due

process. See D onnelly v. DeChristoforo, 

, 643–45 (1974) (applying

standard to allegation of prosecutorial misconduct); 

(applying standard to state evidentiary ruling). A showing of fundamental

unfairness in turn requires Holloman to show any error “had a substantial and

injurious effect or influence in determining the verdict.” Patton v. M ullin, 

, 800 (10th Cir. 2005). H olloman has not made such a showing.

      Both the state supreme court and the federal district court determined that,

although the challenged evidence and arguments were irrelevant, any error did not

influence the verdict because of the overw helming evidence against Holloman.

Holloman has not presented any argument on appeal to convince us to the

contrary. As the state and lower court held, the jury would have convicted

Holloman even without the challenged testimony. The jury did not need to rely

on an inference of violent character based on Holloman’s July 24 behavior to

believe the numerous eyewitness accounts that Holloman deliberately dropped

Johnson from a window on July 25.

      In sum, Holloman has made no substantial showing that the decision of the

W yom ing courts w as contrary to clearly established federal law.

                                   IV. Conclusion

      Because Holloman has not made a substantial showing of the denial of a




                                         -12-
constitutional right, we decline to issue a COA and dismiss the appeal.



                                                   Entered for the Court

                                                   Timothy M . Tymkovich
                                                   Circuit Judge




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