FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 28, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
THOMAS ALLEN TWOBABIES,

      Petitioner - Appellant,

v.                                                         No. 16-6033
                                                    (D.C. No. 5:14-CV-00241-R)
ROBERT PATTON, Director,                                   (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Thomas Allen Twobabies, an Oklahoma 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 application for a writ of habeas corpus. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court”). He also seeks leave to proceed in forma pauperis (“ifp”). We deny a

COA, grant the motion to proceed ifp, and dismiss this matter.




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         This order is not binding precedent, except under the doctrines of law of the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

       A jury convicted Mr. Twobabies of first degree murder and sentenced him to

life without the possibility of parole. The Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed his conviction and sentence on direct appeal. See Twobabies v.

State, No. F-2012-264 (Okla. Crim. App. May 20, 2013). Mr. Twobabies then filed

an application for relief under 28 U.S.C. § 2254, which the district court denied.

This request for a COA followed.

                                      II. DISCUSSION

                           A. Legal Standards and Issues

      To obtain a COA, Mr. Twobabies must make “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists

could debate whether . . . the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further,” Slack v. McDaniel, 

, 484 (2000) (internal quotation marks

omitted).

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs federal habeas review of state court decisions. See 28 U.S.C. § 2254. When,

as here, the § 2254 applicant presented his federal law issues in the state court

proceedings and the merits of those issues were adjudicated there, a federal court

may grant habeas relief only if the state court decision “was contrary to, or involved

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

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

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unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” 

      “When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural principles to the

contrary.” Harrington v. Richter, 

, 99 (2011). If the § 2254 applicant has

not overcome the presumption, we apply deferential AEDPA review to the claim. 

argues he is entitled to a COA because the trial court

committed federal constitutional violations when it (1) excluded evidence; (2) limited

his ability to cross-examination a witness; (3) admitted hearsay statements; and

(4) allowed photographs and testimony that were unduly prejudicial. He also argues

(5) prosecutorial misconduct deprived him of his right to a fair trial; (6) he received

ineffective assistance from his trial counsel; and (7) cumulative error deprived him of

the right to due process. Mr. Twobabies raised the same seven arguments on direct

appeal before the OCCA. Because the OCCA denied relief, we presume it decided

Mr. Twobabies’ federal claims on the merits, even where it did not do so expressly.

See 

Because Mr. Twobabies has not overcome this presumption, the

district court’s review of his claims is subject to AEDPA deference. See 

Mr. Twobabies’ pro se arguments, see United States v.

Pinson, 

, 975 (10th Cir. 2009), we consider each of his claims and

conclude that reasonable jurists could not debate the district court’s denial of his

habeas application.

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                                      B. Analysis

1. Exclusion of Evidence

      Before trial, Mr. Twobabies unsuccessfully sought to suppress statements he

made to police when he was taken into custody. At trial, the prosecution declined to

elicit those statements from the police detective who had interviewed Mr. Twobabies

after his arrest. At a bench conference, defense counsel stated that he was “stunned”

by the prosecution’s apparent change in course, and that without the statements,

Mr. Twobabies’ defense of voluntary intoxication could not be raised effectively.

R., Vol. 2, Trial Tr. Vol. 4 at 217. After an overnight recess, the prosecution moved

to prohibit defense counsel from eliciting the statements from the detective on

cross-examination because they were inadmissible hearsay. The trial court granted

the motion. Mr. Twobabies then moved to dismiss the case due to prosecutorial

misconduct. The court denied that motion.

      Mr. Twobabies argues that because the prosecution led him to believe it would

introduce the statements and knew he was relying on them as a basis for his defense,

the trial court’s ruling, affirmed by the OCCA, deprived him of the right to present a

complete defense under the Sixth and Fourteenth Amendments. The OCCA rejected

this argument.

      Mr. Twobabies does not dispute that the statements were inadmissible hearsay

under Oklahoma rules of evidence. “An out-of-court self-serving exculpatory

statement, . . . is hearsay, and to be admissible must either fall within a firmly rooted

hearsay exception or the declarant must take the stand and be available for

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cross-examination.” Phillips v. State, 

, 607 (Okla. Crim. App. 1988).

Nor does he deny that he could have admitted the statements through his own

testimony had he opted to testify.

       Moreover, he cites no clearly established authority for the proposition that

once the statements were deemed admissible, the prosecution had a duty to present

them at trial, or that the OCCA’s rejection of his Sixth and Fourteenth Amendment

claim is contrary to federal law. See Early v. Packer, 

, 8 (2002) (“A

state-court decision is contrary to our clearly established precedents if it applies a

rule that contradicts the governing law set forth in our cases or if it confronts a set of

facts that are materially indistinguishable from a decision of this Court and

nevertheless arrives at a result different from our precedent.” (internal quotation

marks omitted)). “Our inquiry ends if no clearly established law exists.” Holland v.

Allbaugh, 

, 1227 (10th Cir. 2016).

       We conclude Mr. Twobabies has not met his burden under AEDPA and has not

made a substantial showing that he was deprived of his right to present a complete

defense simply because the prosecution did not elicit statements at trial that the trial

court had deemed admissible. Reasonable jurists could not debate the district court’s

application of AEDPA to Mr. Twobabies’ constitutional claim, and we therefore deny

a COA.

2. Exclusion of Testimony

       Mr. Twobabies’ former girlfriend testified as a prosecution witness. On

cross-examination, she testified that when the police came to talk to her about the

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murder, she was scared and did not want to talk to them, that she did not want to

testify, and that the victim’s family had threatened her. Defense counsel asked:

“Can you tell me about [the victim’s] family, the threats they have made to you?”

R., Vol. 2, Trial Tr. Vol. 3 at 293. The prosecution objected before she could answer,

and the court sustained the objection.

      On direct appeal, the OCCA found no error because the substance of the

excluded testimony was not in the record, and therefore the OCCA could not

determine if the testimony was relevant or if its exclusion caused Mr. Twobabies any

harm. The OCCA rejected Mr. Twobabies’ claim that his constitutional rights had

been violated.

      Mr. Twobabies argues he was denied his right under the Sixth and Fourteenth

Amendments to confront and cross-examine the witnesses against him because he

was prevented from asking this witness about the nature of the threats she received

from the victim’s family. He has not, however, made any showing as to the

substance of any threats that she might have received. “[T]he Confrontation Clause

guarantees an opportunity for effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Van Arsdall, 

, 679 (1986) (internal quotation marks

omitted). Had Mr. Twobabies wished to pursue this line of questioning further, he

needed to make an offer of proof as to what relevant testimony might be elicited. He

did not do so.



                                         -6-
       Even here, he offers only speculation as to what types of threats the victim’s

family might have made against his former girlfriend. “[T]rial judges retain wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” 

absence of any offer of proof as to what threats were actually made,

Mr. Twobabies is unable to show a violation of clearly established federal law, and

reasonable jurists could not debate the district court’s denial of his claim. We

therefore deny a COA on this claim.

3. Hearsay

       The victim’s wife, an eyewitness to the murder, also testified as a prosecution

witness, stating on cross-examination that she initially told the police that someone

she knew as “Tim” and another individual had stabbed her husband. A police

detective later testified that when he interviewed her, the victim’s wife stated she saw

“Tim” repeatedly stab her husband with a knife. The detective testified further that at

a subsequent interview, she identified Mr. Twobabies as the person she knew as

“Tim.” Defense counsel did not object to the detective’s statements. Reviewing for

plain error, the OCCA concluded that the admission of the statements, even if they

were hearsay, did not affect the outcome of the trial or violate Mr. Twobabies’

substantial rights, including his federal constitutional rights.



                                           -7-
      Mr. Twobabies maintains that the introduction of the statements made by the

victim’s wife through the detective’s testimony violated his rights under the Sixth

and Fourteenth Amendments but does not identify any clearly established law that

was violated by the admission of these statements. Because the district court’s

application of AEDPA to deny this claim is beyond judicial debate, we deny a COA.

4. Testimony About the Victim’s Injuries

      Mr. Twobabies argues that his due process rights were violated by “the

introduction of irrelevant and cumulative but highly prejudicial photographs and

testimony concerning the victim’s injuries.” R., Vol. 1 at 22. On direct appeal, the

OCCA concluded that the evidence was relevant to show that the victim died from

his stab wounds and that Mr. Twobabies acted with the requisite intent to kill. It

concluded that the probative value of the evidence was not outweighed by unfair

prejudice to Mr. Twobabies and admitting the evidence did not violate due process.

      “Even if [the defendant] did not dispute the manner of death, the state still

bore the burden to convince the jury that its witnesses, both eyewitnesses and

experts, provided an accurate account of events.” Thornburg v. Mullin, 

, 1129 (10th Cir. 2005). The photographs and testimony about the victim’s

injuries corroborated the accounts of the other prosecution witnesses. See 

has not shown that admission of this evidence rendered the trial

fundamentally unfair or that the OCCA unreasonably applied clearly established

federal law. We therefore deny a COA.



                                         -8-
5. Prosecutorial Misconduct

      Mr. Twobabies argues the prosecution’s comments during voir dire and

closing argument were improper and violated his rights under the Eighth and

Fourteenth Amendments.

      a. Comments During Voir Dire

      Mr. Twobabies argues that the prosecution’s comments and questions during

voir dire about the reasonable doubt standard created confusion for the jury and were

designed to lower the prosecution’s burden of proof. After one prospective juror

stated that his “greatest fear has always been sending an innocent person to jail,” the

prosecution later asked, “[I]f we prove . . . beyond a reasonable doubt, which is what

the law requires, if we prove that, you would still be able to find the defendant guilty,

even though you have this concern about putting an innocent man in jail?” R.,

Vol. 2, Trial Tr. Vol. 1 at 212-13. The juror responded: “Absolutely.” 

The prosecution followed up by reiterating its concern that a juror might be “so

fearful of putting somebody who is innocent in prison that [he or she] won’t really

consider what the law is.” 

The juror affirmed that despite his concern, he

would still be able to find someone guilty if the prosecution met its burden of proof.

      The OCCA found no error warranting relief, citing Phillips v. State, 

, 1028 (Okla. Crim. App. 1999), for the proposition that comments “used to

dispel commonly held attitudes and often heard phrases” do not necessarily amount

to impermissible attempts to define reasonable doubt. R., Vol. 1 at 43. The OCCA

further determined that Mr. Twobabies failed to show the prosecution’s comments or

                                          -9-
any other references to reasonable doubt during voir dire misled the jury, were

incorrect statements of the law, or amounted to a constitutional violation.

Mr. Twobabies has not shown the OCCA unreasonably applied clearly established

federal law when it affirmed on this issue. Reasonable jurists could not debate the

district court’s denial of this claim. Accordingly, we deny a COA.

       b. Comments During Closing Argument

       During closing argument, the prosecution told the jury that if it found

Mr. Twobabies guilty of first degree murder, it then had to decide whether to

sentence him to life or life without parole. The prosecution explained that a life

sentence (with the possibility of parole) would mean that Mr. Twobabies would have

to serve 85 percent of a 45-year sentence before being eligible for parole. The

prosecution continued: “When do you want the defendant back in our community?

Do you want him back on the streets? Do you want someone that is capable of

committing this type of crime out of prison, or do you want him in prison behind bars

for the rest of his life?” R., Vol. 2, Trial Tr. Vol. 5 at 137.

       After the trial court sustained an objection by defense counsel, the prosecution

resumed:

       The only way the 12 of you, with any confidence, can know that the
       defendant will serve the rest of his life in prison is if you sentence him
       to life without parole. Any other sentence does not guarantee that. In
       making that decision, think about the crime, think about what [the
       victim] went through, think about what the defendant is capable of
       doing. What does he deserve for this killing?




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Defense counsel objected again. After a brief bench conference, the trial

court admonished the prosecution to “get away from this parole business” but

declined to give a curative instruction. 

      Later during deliberations, the jury sent a note to the trial court asking whether

a person serving a normal life sentence could be released before serving 85 percent of

45 years because of prison overcrowding. Without objection, the court responded

that the jury was to render a decision based on the evidence and testimony presented.

      On direct appeal, the OCCA rejected Mr. Twobabies’ claim of prosecutorial

misconduct premised on the prosecution’s statements and the jury’s question. After

noting that the statements did not misinform the jury about Oklahoma’s 85-percent

rule, see Taylor v. State, 

, 379 (Okla. Crim. App. 2011) (“The

prosecutor’s comments on the 85% Rule had no substantial influence on the outcome

of trial, and no relief is required.”), the OCCA concluded no error occurred that

warranted relief. Mr. Twobabies has failed to show that the OCCA unreasonably

applied clearly established federal law, and reasonable jurists could not debate the

district court’s denial of this claim. We therefore deny a COA.

6. Ineffective Assistance of Counsel

      Mr. Twobabies next argues that he received ineffective assistance of counsel in

violation of the Sixth Amendment based on his trial counsel’s failure to object to the

testimony, evidence, and voir dire comments addressed in the previous three

arguments.



                                         - 11 -
      To establish ineffective assistance of counsel, Mr. Twobabies must show that

(1) his counsel’s performance fell below an objective standard of reasonableness, and

(2) that the deficient performance resulted in prejudice to him. See Strickland v.

Washington, 

, 687 (1984). An attorney’s performance is prejudicial if

there is a “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 

Our review of the

state court’s decision on this issue is subject to the deferential AEDPA standard of

review. Woods v. Etherton, 

, 1151 (2016) (per curiam).

      The OCCA concluded the lack of objection from Mr. Twobabies’ trial counsel

to the police detective’s testimony recounting the statements of the victim’s wife was

not prejudicial given that the detective’s testimony was substantially similar to her

own testimony at trial and corroborated by other eyewitnesses. And, having found no

error with respect to the photographic and testimonial evidence regarding the

victim’s injuries and the prosecution’s comments during voir dire, the OCCA

concluded that any objections by Mr. Twobabies’ trial counsel would not have

changed the outcome of his direct appeal. We agree Mr. Twobabies has not made the

required showing that the result of his trial would have been different had his trial

counsel objected and made a record on these grounds. He therefore cannot establish

the prejudice prong of the Strickland test. “We need not analyze both the

performance and prejudice prongs of the Strickland test if defendant fails to make a

sufficient showing of one.” United States v. Hollis, 

, 1194 (10th Cir.

2009) (internal quotation marks omitted).

                                         - 12 -
      Because Mr. Twobabies has not shown a Sixth Amendment violation, the

OCCA did not unreasonably apply Strickland, and reasonable jurists could not debate

the district court’s denial of this claim, we deny a COA.

7. Cumulative Error

      Finally, we reject Mr. Twobabies’ argument that cumulative error warrants

habeas relief in this case. The OCCA summarily rejected this argument based on its

determination that none of his other propositions of error had any merit. The

OCCA’s conclusion was not contrary to or an unreasonable application of clearly

established federal law. See Hooks v. Workman, 

, 1194 n.24 (10th Cir.

2012) (concluding there is no need to conduct cumulative-error analysis where there

is not more than one error). No COA is warranted.

                                 III. CONCLUSION

      For the foregoing reasons, we deny Mr. Twobabies’ application for a COA.

We grant Mr. Twobabies’ request to proceed ifp. Although our denial of a COA

concludes this matter, Mr. Twobabies remains obligated to pay all filing and

docketing fees.


                                           ENTERED FOR THE COURT,



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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