* This order and judgment is not binding precedent, e xcept under the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

### JAN 14 1998 

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

CRAIG L. TAYLOR,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 97-6038 (D.C. No. 96-CV-1100) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , 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-

Petitioner Craig L. Taylor appeals the district cou rt’s order adopting the magistrate judge’s recommendation to deny his petit ion for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We denypetitioner’s application for a certificate of appealability, see 28 U.S.C. § 2253(c), and dismiss the appeal. Following a jury trial in an Oklahoma state court p roceeding, petitioner was convicted of the crime of robbery with a dangerous weapon after former conviction of two or more felonies. On appeal, he contends that his conviction and sentence are constitutionally infirm because he received ineffective assistance of trial counsel, the prosecutor’s comments deprive d him of a fair trial, and the evidence was insufficient to establish the use of adangerous weapon or the existence of his prior convictions. We first address petitioner’s claims of prosecutori al misconduct, which we review de novo. See Nguyen v. Reynolds , No. 96-5254, 1997 WL 693685, *19 (10th Cir. Nov. 7, 1997). “[P]rosecutorial mis conduct in a state court violates a defendant’s right to a fair trial only i f the prosecutor’s actions ‘so infected the trial with unfairness as to make the r esulting conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974)). For substantially the reasons as those st ated in the magistrate judge’s November 27, 1996, supplemental findings and recomm endation, we determine that the prosecutor’s remarks did not deny petition er due process.-3-

Petitioner next alleges that he was denied the effe ctive assistance of counsel at trial because his attorney (1) failed to request a record of the jury voir dire, (2) did not make an opening statement, ( 3) made no objection to the prosecutor’s improper remarks, (4) improperly menti oned the possibility of early release, (5) did not call any defense witnesses eve n though they had been subpoenaed, and (6) failed to contact alibi witness Jewel Davenport. We review de novo the ultimate question of whether a defendant received ineffective assistance of counsel. See Romero v. Tansy , 46 F.3d 1024, 1028 (10th Cir. 1995). To establish a claim of ineffective assista nce of counsel, petitioner must demonstrate both that counsel’s performance was def icient and that the deficiency prejudiced the defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). Petitioner submitted an affidavit from Jewel Davenp ort dated December 9, 1996, stating that she would have testified at peti tioner’s trial that he was with her at the time of the robbery. Her affidavit refu tes the trial attorney’s statement that no witness could provide petitioner with an al ibi. Therefore, we examine whether petitioner is entitled to a hearing to reso lve the disputed facts. Petitioner filed his habeas petition on July 10, 19 96, after enactment of the Antiterrorism and Effective Death Penalty Act on Ap ril 24, 1996. Consequently, he must meet the requirements of § 2254(e)(2) to be entitled to a hearing.-4-

See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997) (holding new provisi ons of § 2254 apply to cases filed after Act’s effective d ate). 29 U.S.C. § 2254(e)(2) (1996) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the [federal habe as] court shall not hold an evidentiary hearing on the claim unless the applicant shows that -- (A) the claim relies on --

(i) a new rule of constitutional law, made retroac tive to cases on collateral review by the Supreme Court, th at was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due d iligence; and

(B) the facts underlying the claim would be suffic ient to establish by clear and convincing evidence that butfor constitutional error, no reasonable factfinder would have found th e applicant guilty of the underlying offense. In his state appeal and state postconviction motion , petitioner generally raised the issue of his attorney’s failure to prese nt any defense witnesses. He did not identify Jewel Davenport, nor did he claim thatshe would have provided him an alibi. Therefore, because he failed to develop the factual basis for this claim in the state court proceedings, he must show that h e could not have discovered the evidence sooner and that no reasonable factfinder w ould have found him guilty of the robbery if Ms. Davenport had testified. We hol d that he has failed to make the necessary showing. Accordingly, he is not enti tled to a hearing. On the-5-

remaining allegations of ineffective assistance of counsel, we conclude that petitioner’s trial attorney provided constitutional ly effective assistance for substantially the reasons as those stated in the ma gistrate judge’s November 27, 1996, supplemental findings and recommendation. Finally, we consider petitioner’s claims that the e vidence was insufficient to establish that he used a deadly weapon and that he had been convicted of two prior felonies. A claim based on sufficiency of th e evidence is a mixed question of fact and law to be reviewed de novo on federal h abeas. See Maes v. Thomas , 46 F.3d 979, 988 (10th Cir. 1995). “[T]he relevantquestion is whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elemen ts 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). We must “ac cept the jury’s resolution of the evidence as long as it is within the bounds of reason.” Grubbs v. Hannigan , 982 F.2d 1483, 1487 (10th Cir. 1993). Pursuant to Okla. Stat. tit. 21, §§ 791 & 801, the prosecution was required to prove a wrongful taking of personal property of another by force or fear with the use of a dangerous weapon. Petitioner asserts that there was no evidence of a dangerous weapon. The robbery victim testified that petitioner stabbed her with a pair of shears and held them to her neck while he took the money. We hold that-6-

a rational trier of fact could find that petitionerused a dangerous weapon while committing the robbery. We do not address petition er’s claim that the evidence of his prior convictions was insufficient because he d id not make any argument or cite any authority to support it. See United States v. Hardwell , 80 F.3d 1471, 1492, reh’g granted in part on other grounds , 88 F.3d 897 (10th Cir. 1996). APPEAL DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Circuit Judge