* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

THEODORE SMITH,

Petitioner-Appellant,

v. KEN KLINGER,

Respondent-Appellee. No. 98-6012 (D.C. No. CIV-97-583-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

This is an appeal from the district court’s order d enying petitionerappellant Theodore Smith’s petition for writ of hab eas corpus pursuant to 28 U.S.C. § 2254. This matter is before us on Mr. Smith’s motion for a certificate of appealability (COA). In order to receive a COA, Mr. Smith must make a “substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). A habeas petitioner meets this stand ard if he shows that his issues “are debatable among jurists, or that a court couldresolve the issues differently, or that the questions deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th Cir. 1997). Mr. Smith was convicted in Oklahoma state court of several counts involving the passing of bad checks. After exhaust ing his state remedies, he pursued this habeas action in federal district court. The magistrate judge assigned to the case recommended that his petition be denied. After considering Mr. Smith’s objections, the district court adopted the magistrate judge’s recommendations, made additional findings, and deni ed Mr. Smith’s petition. Mr. Smith first argues that he was arrested illegal ly, without probable cause, in violation of the Fourth and Fourteenth Am endments. He asserts that the state court improperly failed to suppress the evide nce resulting from his illegal arrest. Where a state has provided opportunity forfull and fair litigation of Fourth Amendment claims, a state prisoner may not b e granted habeas corpus-3-

relief on the grounds that evidence obtained throug h illegal search and seizure was introduced at his trial. See Stone v. Powell , 428 U.S. 465, 494 (1976). The district court found that Mr. Smith had a full and fair opportunity to litigate his Fourth Amendment claim in state court. Mr. Smith argues that he was denied such an opportunity because his attorney fai led to appear at a suppression hearing. That claim is properly viewed as an assertion of ineffective assistance of counsel with respect to Mr. Smith’s Fourth Amendment issue. Such claims are cognizable in federal habeas proceedings, notwithstanding the rule in Stone

. See Kimmelman v. Morrison , 477 U.S. 365, 382-83 (1986). Mr. Smith bears a demanding burden in asserting his ineffectiveness claim, however. He must show not only that his underlyingFourth Amendment claim was meritorious, but also that his attorney’s ineff ectiveness deprived him of a fair trial. See id. at 382. Mr. Smith does not describe what evidence was seized as the result of his allegedly illegal arrest, or how the introduction of this evidence prejudiced him. See United States v. Owens , 882 F.2d 1493, 1501 (10th Cir. 1989) (petitioner asserting ineffective assistance with regard to Fourth1 Mr. Smith further argues that he is entitled to an evidentiary hearing with

respect to this claim. His failure to make more th an conclusory allegations of prejudice also means that he fails to show that the facts underlying his claim “would be sufficient to establish by clear and conv incing evidence that but for constitutional error, no reasonable fact-finder wou ld have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B) . He is therefore not entitled to an evidentiary hearing. -4- Amendment claim must make affirmative showing of prejudice). 1 He is not therefore entitled to a COA on this issue. Mr. Smith further asserts that his attorney was ine ffective (1) in failing to conduct an investigation; (2) in failing to object to a witness’s statement at trial on hearsay grounds; (3) in failing to call a handwr iting expert; (4) in failing to prepare an alibi defense; (5) in failing to call th e arresting officers as witnesses to his illegal arrest, and concerning the search of a motor vehicle; and (6) in failing to appear at a hearing where he could have argued a gainst use of prior bad acts and other improper evidence against Mr. Smith. We have reviewed the record and the district court’s analysis of these issues, and we agree with the district court that Mr. Smith has failed to demonstrate that his c ounsel was constitutionally ineffective. In his next issue, Mr. Smith argues that the state court erroneously failed to submit an alibi instruction to the jury. He arg ues that he could not have committed two of the crimes charged, because he was in police custody when they occurred. Mr. Smith carries the heavy burden on th is issue of showing that the-5-

omission of an alibi instruction resulted in a tria l which was fundamentally unfair in a constitutional sense. See Lujan v. Tansy , 2 F.3d 1031, 1035 (10th Cir. 1993). Testimony at trial showed that police took Mr. Smith into custody prior to 7:45 p.m. on November 13, 1993. Count Two charged him with attempting to cash a bad check at Homeland Grocery in Duncan, Okl ahoma on that date. Mr. Jackson, Homeland’s assistant manager, testifie d that he “believed” Mr. Smith and Mr. Bivens were in his store at “arou nd” 8:00 p.m. State R. Vol. III at 417. Count Three charged Mr. Smith with cas hing a bad check at Super H in Duncan, also on November 13, 1993. Margie Stall ons, an office clerk at Super H, testified that Mr. Smith and Mr. Bivens were “pr obably” in the store around 8:30. Id. at 446. She based this estimate on the store’s cl osing time of 9:00, reasoning that the defendants were there “around closing time probably.” Id. Mr. Smith rests his alibi theory on the discrepancybetween the time of his arrest and the time the witnesses estimated that the crimes occurred. The witnesses merely gave estimates of the time of the crimes, however, making it entirely possible for Mr. Smith to have participate d in the commission of the crimes. In light of the other evidence tying Mr. S mith to the crimes charged in Counts Two and Three, he fails to show that failure to give an alibi instruction resulted in a fundamentally unfair trial.2 Strictly speaking, this issue is also barred becaus e Mr. Smith has raised it

for the first time on appeal. See Oyler v. Allenbrand , 23 F.3d 292, 300 n.8 (10th Cir. 1994). We do consider it, however, because itfails for much the same reason as Mr. Smith’s jury instruction challenge.

3 Normally, in a post-AEDPA case like this one, the s tate court’s application of the Jackson standard would circumscribe the scope of our review. See 28 U.S.C. § 2254(d). Since Mr. Smith did not present this claim to the state court, however, our review is not measured by the state co urt finding. -6- Mr. Smith also recasts this issue on appeal as a ch allenge to the sufficiency of the evidence to convict him on Counts Two and Th ree. He did not present this sufficiency of evidence issue to the state courts; however, we may still reach and deny it on the merits. See 28 U.S.C. § 2254(b)(2). 2A sufficiency of the evidence claim presents a mixed question of law and fact whi ch we review de novo on federal habeas review. See Maes v. Thomas , 46 F.3d 979, 988 (10th Cir. 1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); accord Scrivner v. Tansy , 68 F.3d 1234, 1239 (10th Cir. 1995). 3 For the same reasons discussed above in the conte xt of his jury instruction challenge, we determine that Mr. Smith fails to show that a rational trier of fact could not have found him guilty beyon d a reasonable doubt of Counts Two and Three.4 Mr. Smith now insists that the test was not inconcl usive, that it excluded

him as the endorser of the bad checks. He presents no evidence to support this claim, however, other than an affidavit which he si gned and presented for the first time with his objections to the magistrate judge’s recommendations. Mr. Smith contends in his affidavit that a previous counsel w ho represented him prior to trial told him that he had seen the results of the handwr iting analysis and that Mr. (continued...) -7- Mr. Smith next claims that the state withheld excul patory information from the defense in violation of Brady v. Maryland , 373 U.S. 83 (1963). In order to establish a Brady violation, the defendant must show that the prosec ution suppressed evidence; that the evidence was favorabl e to the defendant; and that the evidence was material. See United States v. Woodlee , 136 F.3d 1399, 1411 (10th Cir.), petition for cert. filed (U.S. May 22, 1998) (No. 97-9239). Mr. Smith argues that the prosecution improperly suppressed e vidence of the results of a handwriting analysis conducted by the state’s expert. He argues that this analysis excluded him as the endorser of the bad checks. The record does not support this claim. The state’ s attorney informed the district court at trial that the handwriting an alysis had been inconclusive. He therefore declined to call the handwriting expert as a state’s witness. The state’s attorney also noted that he had provided th is information to Mr. Smith’s counsel. Mr. Smith’s counsel did not challenge the se statements by the state’s attorney. Thus, Mr. Smith fails to show that the s tate suppressed evidence favorable to him. 44 (...continued)

Smith had passed the test. In state court, however , Mr. Smith specifically argued that the test was inconclusive, not that it exclude d him. His belated, self-serving affidavit is not sufficient to win him an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). -8- Finally, Mr. Smith argues that his appellate counse l was ineffective in failing to raise the following issues: (1) ineffect ive assistance of trial counsel; (2) suppression of exculpatory evidence; and (3) us e of false evidence or testimony at his trial. The Oklahoma Court of Crim inal Appeals concluded that Mr. Smith had failed to show that his appellate cou nsel was constitutionally ineffective. Mr. Smith fails to show that this det ermination either is contrary to established federal law as determined by the UnitedStates Supreme Court, or is based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. § 2254(d). Mr. Smith’s motion for a COA is DENIED, and his app eal is DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge