F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           DEC 7 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 MICHAEL MITCHELL,

       Petitioner - Appellant,

 v.                                                     No. 04-3316
                                                 (D.C. No. 01-CV-3215-JAR)
 DAVID R. McKUNE, Warden,                                (D. Kansas)
 Lansing Correctional Facility, and
 ATTORNEY GENERAL OF
 KANSAS,

       Respondents - Appellees.



                     ORDER DENYING A CERTIFICATE
                          OF APPEALABILITY



Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Michael Mitchell, a state prisoner proceeding pro se, requests a certificate

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

§ 2254 habeas petition. We DENY a COA and DISMISS.

      After a trial in Kansas state court, a jury convicted Mitchell of first-degree

felony murder pursuant to Kan. Stat. Ann. § 21-3401(b) and felony possession of

cocaine under Kan. Stat. Ann. § 65-4161. Mitchell exhausted state remedies and

on May 23, 2001 filed a § 2254 petition in the court below alleging ineffective
assistance of trial counsel. His petition having been denied, Mitchell now appeals

and argues that his trial counsel was ineffective by: (1) effectively conceding an

element of the felony-murder charge; (2) failing to call a particular witness; and

(3) declining to make an opening statement. 1

      “[W]hen reviewing the merits of a claim already decided by the state

courts, we are bound to deny relief,” LaFevers v. Gibson, 

, 711

(10th Cir. 1999), unless we conclude that the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court” or “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(d).

      Kansas’s first-degree felony murder statute provides: “Murder in the first

degree is the killing of a human being committed in the commission of, attempt to

commit, or flight from an inherently dangerous felony . . . .” Kan. Stat. Ann.

§ 21-3401(b). Mitchell alleges that his counsel rendered ineffective assistance as

to the felony murder charge when she conceded that Mitchell committed an


      1
         Mitchell’s petition was filed after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA’s provisions apply to this case. See Rogers v. Gibson, 

,
1282 n.1 (10th Cir. 1999). AEDPA conditions a petitioner’s right to appeal a
denial of habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. §
2253(c)(1)(A). Accordingly, Mitchell may not appeal the district court’s decision
absent a grant of COA by this court.

                                         2
inherently dangerous felony by selling cocaine to Donald Beebe, the murder

victim. The state court rejected Mitchell’s ineffective assistance argument

because there was overwhelming evidence that Mitchell attempted to sell cocaine

to the victim, and therefore Mitchell failed to demonstrate prejudice under

Strickland v. Washington, 

(1984). As characterized by the state

court, defense counsel’s theory at trial was as follows:

             “Barbara Williams and Nathaniel Hill inflicted Beebe’s
             injuries. Williams and Hill arranged the cocaine
             transaction between Mitchell and Beebe and were
             outside Beebe’s truck during the incident in question.
             Mitchell’s attorney suggested that after Mitchell left the
             scene, Williams and Hill entered the truck and shot
             Beebe so they could steal his wallet and cocaine.”

       Liberally construing Mitchell’s petition, he argues that the court should

have presumed prejudice under United States v. Cronic, 

, 659 (1984)

(courts must presume prejudice when “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing”). In Bell v. Cone, the

Supreme Court emphasized: “When we spoke in Cronic of the possibility of

presuming prejudice based on an attorney’s failure to test the prosecutor’s case,

we indicated that the attorney’s failure must be complete. We said ‘if counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing.’”

, 696-97 (2002) (emphasis in original). By subjecting the

government’s witnesses to cross-examination and presenting a defense that would


                                          3
permit the jury to acquit Mitchell of murder, Mitchell’s counsel did not entirely

fail to test the prosecution’s case. Therefore, the state court did not unreasonably

apply Strickland or Cronic by declining to presume prejudice.

      In his second argument, Mitchell claims that his trial counsel rendered

ineffective assistance by failing to call as a witness Donald Moss, whose

testimony would have purportedly contradicted some of Williams’ and Hill’s

testimony. Although noting that “there is nothing in the record, other than

speculation by Mitchell’s attorney at the 60-1507 [state habeas] hearing, as to the

substance of Moss’[s] alleged testimony,” the state court nonetheless analyzed

Mitchell’s claim under Strickland and concluded that Moss’s testimony would not

likely have changed the verdict. Therefore, the court concluded, Mitchell again

failed to demonstrate prejudice. The state court’s determination did not constitute

an unreasonable application of Strickland In his application for COA, Mitchell

includes an affidavit from Moss detailing what Moss’s testimony allegedly would

have been at trial. This affidavit was not properly before the state court, and in

any event its substance does not alter our conclusion that the state court

appropriately applied Strickland’s prejudice prong.

      Finally, Mitchell argues that, “when coupled with other deficiencies,” trial

counsel’s failure to give an opening statement constituted ineffective assistance.

The district court concluded that defense counsel’s waiver of an opening


                                          4
statement is a strategic decision and does not constitute deficient performance.

Mitchell has not demonstrated “that reasonable jurists could debate whether (or,

for that matter, agree that),” Slack v. McDaniel, 

, 484 (2000)

(quotation omitted), his counsel’s decision to forgo an opening statement,

together with counsel declining to call Donald Moss and counsel presenting the

defense that she did, constitutes ineffective assistance.

       We DENY a COA and DISMISS.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero

                                        Circuit Judge




                                          5