* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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This is an appeal from the district court’s order denying petitionerappellant Theodore Smith’s petition for writ of habeas 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 constitutional right.” 28 U.S.C.

§ 2253(c)(2). A habeas petitioner meets this standard if he shows that his issues

“are debatable among jurists, or that a court could resolve 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 exhausting 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 denied Mr. Smith’s petition.

Mr. Smith first argues that he was arrested illegally, without probable

cause, in violation of the Fourth and Fourteenth Amendments. He asserts that the

state court improperly failed to suppress the evidence resulting from his illegal

arrest. Where a state has provided opportunity for full and fair litigation of

Fourth Amendment claims, a state prisoner may not be granted habeas corpus
-3-

relief on the grounds that evidence obtained through 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 failed 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 underlying Fourth Amendment claim

was meritorious, but also that his attorney’s ineffectiveness 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 Fourth
1 Mr. Smith further argues that he is entitled to an evidentiary hearing with

respect to this claim. His failure to make more than 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 convincing evidence that but for

constitutional error, no reasonable fact-finder would 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.

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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 ineffective (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 handwriting expert; (4) in failing to

prepare an alibi defense; (5) in failing to call the 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 against 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 counsel 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 argues 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 this issue of showing that the
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omission of an alibi instruction resulted in a trial 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, Oklahoma on that date. 

Mr. Jackson, Homeland’s assistant manager, testified that he “believed”

Mr. Smith and Mr. Bivens were in his store at “around” 8:00 p.m. State R. Vol.

III at 417. Count Three charged Mr. Smith with cashing a bad check at Super H

in Duncan, also on November 13, 1993. Margie Stallons, an office clerk at Super

H, testified that Mr. Smith and Mr. Bivens were “probably” in the store around

8:30. Id. at 446. She based this estimate on the store’s closing time of 9:00,

reasoning that the defendants were there “around closing time probably.” Id.

Mr. Smith rests his alibi theory on the discrepancy between 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 participated in the commission of the

crimes. In light of the other evidence tying Mr. Smith 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 because 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 it fails for much the same reason

as Mr. Smith’s jury instruction challenge.

3 Normally, in a post-AEDPA case like this one, the state 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 court finding. 

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Mr. Smith also recasts this issue on appeal as a challenge to the sufficiency

of the evidence to convict him on Counts Two and Three. 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). 2 A sufficiency of the evidence

claim presents a mixed question of law and fact which 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 context 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 beyond a reasonable doubt of Counts

Two and Three.
4 Mr. Smith now insists that the test was not inconclusive, 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 signed 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 who represented him prior to trial

told him that he had seen the results of the handwriting analysis and that Mr.

(continued...)

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Mr. Smith next claims that the state withheld exculpatory 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 prosecution

suppressed evidence; that the evidence was favorable 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 evidence 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 analysis 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 this information to Mr. Smith’s

counsel. Mr. Smith’s counsel did not challenge these statements by the state’s

attorney. Thus, Mr. Smith fails to show that the state suppressed evidence

favorable to him. 4
4

(...continued)

Smith had passed the test. In state court, however, Mr. Smith specifically argued

that the test was inconclusive, not that it excluded him. His belated, self-serving

affidavit is not sufficient to win him an evidentiary hearing. See 28 U.S.C.

§ 2254(e)(2).

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Finally, Mr. Smith argues that his appellate counsel was ineffective in

failing to raise the following issues: (1) ineffective assistance of trial counsel;

(2) suppression of exculpatory evidence; and (3) use of false evidence or

testimony at his trial. The Oklahoma Court of Criminal Appeals concluded that

Mr. Smith had failed to show that his appellate counsel was constitutionally

ineffective. Mr. Smith fails to show that this determination either is contrary to

established federal law as determined by the United States 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 appeal is DISMISSED.

Entered for the Court

Stephen H. Anderson

Circuit Judge