Jones v. Trammell

Filing

[10317976] Affirmed; Terminated on the merits after oral hearing; Written, signed, published;. Judges Matheson, Bacharach and Moritz (author). Mandate to issue December 2, 2015. [13-6141]

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

November 10, 2015

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

JULIUS DARIUS JONES,
Petitioner - Appellant,
No. 13-6141

v.
MAURICE WARRIOR, Interim Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.
_________________________________
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.

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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. 226, 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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