* This order and judgment is not binding precedent, e xcept under the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

### MAR 2 2004 

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

EUGENE ROBERT SNYDER,

Petitioner-Appellant,

v. MIKE ADDISON, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 03-6050 (D.C. No. 02-CV-1214-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 We previously entered a separate order denying peti tioner’s application

for a COA with respect to four other issues. See Order filed on August 11, 2003 at 1-2. -2- Petitioner-appellant Eugene Robert Snyder was convi cted by an Oklahoma state court jury of robbery with a firearm after fo rmer conviction of two or more felonies, and he received a twenty-year prison sent ence. The Oklahoma Court of Criminal Appeals (OCCA) affirmed petitioner’s convi ction and sentence on direct appeal. Subsequently, the OCCA also affirmed the d enial of petitioner’s application for post-conviction relief. Pursuant t o 28 U.S.C. § 2254, petitioner then filed a petition for a writ of habeas corpus i n the United States District Court for the Western District of Oklahoma. Following the district court’s denial of his habeas petition, petitioner filed the instant pro se appeal in this court. We grante d petitioner a certificate of appealability (COA) with respect to the following i ssues: Whether petitioner received state-induced ineffecti ve assistance of trial counsel in light of the trial court’s refusal to grant a continuance, and/or ineffective assistance of couns el, irrespective of state conduct, when trial counsel failed to adhere to Oklahoma procedural rules in moving for a continuance. Order filed August 1, 2003 at 1-2. 1 We conclude that petitioner has failed to establish that he is entitled to habeas relief base d on his claims that he received ineffective assistance of trial counsel. According ly, we affirm the denial of petitioner’s habeas petition.2 As used herein, “S.R.” refers to the state-court re cord; “S.T.” refers to the

state-court trial transcript; and “F.R.” refers to the record of the federal district court. -3- I. Petitioner was charged under Oklahoma law with robb ing Warren Watkins and Tom Purtell on February 5, 2000. The robbery a llegedly occurred inside petitioner’s residence after a dispute arose over m oney that Purtell allegedly owed petitioner. According to Watkins and Purtell, another individual, Jimmy Don “Cracker” Wilson, ordered them to kneel on the floo r and empty their pockets, and petitioner facilitated the robbery by brandishi ng a gun. Petitioner’s preliminary hearing took place on Marc h 14, 2000, and he was arraigned on March 16. Although petitioner’s trial was initially set to commence on an unspecified date during a trailing docket that began on April 3, see S.R. at 22, 182, 2the trial judge who presided over petitioner’s arr aignment “assured trial counsel that [petitioner’s] trial would not commenc e before April 10th.” F.R., Doc. 11, Ex. C (summary opinion of OCCA on direct appeal) at 2 n.1. Nonetheless, on Friday, March 31, petitioner’s tria l counsel was informed by the trial judge who was to preside over petitioner’s tr ial that the trial was to commence on Monday, April 3. During a pretrial conference on the morning of Apri l 3, petitioner’s trial counsel moved for a continuance of the trial on the ground that he was unprepared-4-

to proceed because: (1) as noted above, he had prev iously been informed by another judge that petitioner’s trial would not commence until April 10; and (2) while a transcript of the preliminary hearing had b een filed with the trial court on March 31, he did not received his copy of the trans cript until the morning of April 3, and he therefore had “not really had a chance to adequately even go over the transcript, much less get prepared to call any kindof witnesses that might be helpful in a meaningful defense for Mr. Snyder.” S .T. at 14. Petitioner’s trial counsel also asserted that petitioner was “being de nied effective assistance of counsel for not being able to adequately prepare inviolation of his Sixth and Fourteenth Amendment Rights of the United States Constitution.” Id. After noting that the case had been placed on a trailing docket, and that, as a result, the case had not been set for a “date and time certain,” id. at 15, the trial judge denied the motion for a continuance, stating that “ today is the first day of the jury term. I chose to try [this case] the first day,” id. Petitioner’s two-day, two-stage, jury trial commenc ed immediately following the court’s denial of the motion for a co ntinuance. During the trial, petitioner’s trial counsel participated in jury sel ection; he gave a brief opening statement; he objected to evidence presented by the prosecution; he3 During his trial, petitioner was represented by twocourt-appointed

attorneys from the Oklahoma Indigent Defense System . To simplify matters, we will refer to petitioner’s trial counsel only in th e (masculine) singular. -5- cross-examined the prosecutions’ three witnesses, which included impeaching Watkins and Purtell with statements they made to th e police; he presented two witnesses on behalf of petitioner; and he gave closing arguments. 3
II. A. Claims at Issue in This Appeal. Relying on the Supreme Court’s decisions in United States v. Cronic , 466 U.S. 648 (1984) and Bell v. Cone , 535 U.S. 685 (2002), petitioner claims that he received state-induced ineffective assistance of tr ial counsel because, by denying his trial counsel’s motion for a continuance, the trial court forced his counsel to go to trial unprepared. In accordance with Cronic and Bell , petitioner claims that he is therefore entitled to a presumption of prejud ice. Alternatively, relying on Strickland v. Washington , 466 U.S. 668 (1984), petitioner claims that he received ineffective assi stance from his trial counsel because counsel’s performance at trial was deficient and he was prejudiced by his counsel’s deficient performance. Although this court’s COA order did not explicitly include petitioner’s Strickland claim, the claim is closely related to petitioner’s state-induced ineffective assistance claim under Cronic and Bell . We also note that respondents have addressed the merits of petitioner’s Strickland4 In its order affirming the denial of petitioner’s application for postconviction relief, the OCCA concluded that petition er was procedurally barred from asserting his standard (or non-state induced) ineffective assistance of trial counsel claim because he had waived it by failing t o assert it on direct appeal. See F.R., Doc. 11, Ex. I at 1-2. In this appeal, howe ver, respondents do not argue procedural bar. “In light of the State’s waiver, this court may consider the claim on its merits without addressing procedural bar.” James v. Gibson , 211 F.3d 543, 557 (10th Cir. 2000). -6- claim in the brief they filed in response to the COA order. See Aplee. Br. at 6-
14. 4Thus, we liberally construe the grant of COA to i nclude petitioner’s Strickland claim. The grant of COA also includes the specific issue o f whether petitioner’s trial counsel was ineffective in failing “to adhere to Oklahoma procedural rules in moving for a continuance.” Order filed on August 1 , 2003 at 1-2. We do not need to separately address this issue, however, bec ause it is subsumed within the issue of counsel’s deficient performance under Strickland , and we conclude that even if counsel’s performance was deficient, petitioner’s Strickland claim fails since he has not made a sufficient showing of preju dice arising from the denial of his motion for a continuance. Cf. Warner v. State , 29 P.3d 569, 575 (Okla. Crim. App. 2001) (holding that defendant received ineffec tive assistance from his trial counsel where counsel’s performance was deficient b ecause he failed to file a written motion for a continuance and a supporting a ffidavit as required by Okla.-7-

Stat. tit. 12, § 668, and the deficient performance prejudiced defendant under Strickland ).
B. Ineffective Assistance of Counsel Claims. 1. Standards of Review. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) governs whether petitioner may obtain federal habea s relief. Under AEDPA, if petitioner’s ineffective assistance claims were adj udicated on the merits in state court, he is not entitled to federal habeas relief with respect to any legal issues unless he can establish that the state court decisi on was “contrary to, or involved an unreasonable application of, clearly establishedFederal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). This limitation on our review is known as “AEDPA deference.” “Under the ‘unreasonable application’ clause, a fed eral habeas court may grant the writ if the state court identifies the co rrect governing legal principle from [the Supreme Court’s] decisions but unreasonab ly applies that principle to the facts of the prisoner’s case.” Williams v. Taylor , 529 U.S. 362, 413 (2000) (O’Connor, J., concurring). “‘Unreasonableness’ is gauged by an objective standard.” Miller v. Mullin , 354 F.3d 1288, 1292 (10th Cir. 2004) (quotation omitted). As a result, “[i]t is not sufficient if the state court decision applied clearly established federal law erroneously or inco rrectly; the application must be-8-

objectively unreasonable.” Paine v. Massie , 339 F.3d 1194, 1198 (10th Cir. 2003). In its summary opinion affirming petitioner’s conv iction on direct appeal, the OCCA stated that it found “no state induced ine ffectiveness of [trial] counsel,” and the OCCA cited Strickland to support its conclusion. F.R., Doc. 11, Ex. C (summary opinion of OCCA on direct appeal) at2. Consequently, the OCCA adjudicated petitioner’s state-induced ineffec tive assistance claim on the merits. Further, because Strickland recognized the principle that state interference with counsel’s assistance is legally p resumed to result in prejudice in certain Sixth Amendment contexts, see Strickland , 466 U.S. at 692 (citing Cronic , 466 U.S. at 659 & n.25), the OCCA identified the co rrect governing legal principle from the Supreme Court’s decisions, and the fact that it did so in a summary opinion is immaterial for purposes of AEDPA deference. See Paine , 339 F.3d at 1198. Consequently, we must conduct anindependent review of the record and pertinent federal law and determine whether the OCCA’s rejection of petitioner’s state-induced ineffective assistance c laim involved an “unreasonable application” of federal law. Id. As noted above, petitioner is also asserting a stan dard (or non-stateinduced) ineffective assistance claim under Strickland . Although petitioner asserted his Strickland claim in the post-conviction proceedings before th e-9-

OCCA, the OCCA did not address the merits of the cl aim because it determined that petitioner had waived the claim by failing to raise it in his direct appeal. See F.R., Doc. 11, Ex. I (order of OCCA affirming denia l of post-conviction relief) at 1-2. As a result, the OCCA did not adjudicate petitioner’s Strickland claim on the merits, and “the AEDPA standards do not apply.” Cook v. McCune , 323 F.3d 825, 830 (10th Cir. 2003). Instead, we review petitioner’s Strickland claim de

novo. See United States v. Whalen , 976 F.2d 1346, 1347 (10th Cir. 1992) (noting that “the performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo ”).

2. Cronic/Bell
. We conclude that the OCCA’s adjudication of petitio ner’s state-induced ineffective assistance claim did not result in a de cision that involved an unreasonable application of the principles establis hed by the Supreme Court in
Cronic and Bell

. In Cronic , the Supreme Court “identified three situations implicating the right to counsel that involved circumstances ‘so li kely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’” Bell , 535 U.S. at 695 (quoting Cronic , 466 U.S. at 658-59). First and “[m]ost obvious” was the “complete denialof counsel.” Id. , at 659. . . . A trial would be presumptively unf air, we said, where the accused is denied the presence of counsel at “a critical stage,” id. , at 659, 662, . . . a phrase we used in Hamilton v.-10-

Alabama , 368 U.S. 52, 54, . . . (1961), and White v. Maryland , 373 U.S. 59, 60 . . . (1963) ( per curiam ), to denote a step of a criminal proceeding, such as arraignment, that heldsignificant consequences for the accused. Second, we posited that a similar presumption was warranted if “counsel entirely fail s to subject the prosecution’s case to meaningful adversarial testing.” Cronic , supra , at 659. . . . Finally, we said that in cases like Powell v. Alabama , 287 U.S. 45, 53 . . . (1932), where counsel is call ed upon to render assistance under circumstances where competent coun sel very likely could not, the defendant need not show that the pro ceedings were affected. Id. at 695-96 (citing Cronic , 466 U.S. at 659-62) (footnote omitted). The first situation is not implicated here because petitioner was represented by counsel at all times during the trial proceeding s. Likewise, the second situation is not implicated because, as noted above , petitioner’s trial counsel actively participated in all phases of the trial proceedings. Id. at 696-97 (noting that “[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecution’s case, we indicated that an attorney’s failure must be complete. We said ‘if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing’”) (quoting Cronic , 466 U.S. at 659); see also Cooks v. Ward , 165 F.3d 1283, 1296 (10th Cir. 1998) (holding that trial counsel’s deficient performance during sentencing stage of trial did not “amount to kind of actual or constructive d enial of counsel necessary to trigger a presumption of prejudice” where counsel c onducted limited crossexamination, made evidentiary objections, and gave a closing argument); Hooper-11-

v. Mullin , 314 F.3d 1162, 1175 (10th Cir. 2002) (holding that the “record [did] not support the conclusion that defense counsel ent irely failed to subject the prosecution’s case to meaningful adversarial testin g . . . [where] Defense counsel cross-examined the State’s guilt-stage witnesses, m ade objections to the State’s evidence, presented some evidence in Petitioner’s d efense, and made opening and closing arguments”), cert. denied , 124 S. Ct. 97 (2003). The third situation is also not implicated here. In Cronic , the Supreme Court cited to its decision in Powell v. Alabama , 287 U.S. 45 (1932) as an example of a case involving a situation where trial counsel is called upon to render assistance under circumstances where compete nt counsel very likely could
not. Cronic , 466 U.S. at 659-60. Powell is inapposite for purposes of this case, however, because Powell involved an extreme situation where the trial court waited until the very day of trial to appoint counsel for the defendants. Id. at 660-61. By contrast, petitioner’s trial counsel wa s appointed almost two months before his trial commenced, see S.R. at 12, and the shortening of counsel’s trialpreparation time by one week is distinguishable fro m the extreme situation that existed in Powell

.

3. Strickland
. To prevail on his Strickland claim, petitioner must establish that: (1) his trial counsel’s performance was deficient; and (2) his trial counsel’s deficient-12-

performance prejudiced him. See Strickland , 466 U.S. at 687. “This court may address the performance and prejudice components inany order, but need not address both if [petitioner] fails to make a sufficient showing of one.” Cooks , 165 F.3d at 1292-93. Here, we need only address th e prejudice prong, which requires that petitioner “must show that there is areasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. In his opening and reply briefs, petitioner refers in conclusory fashion to a number of failures of his trial counsel that allege dly prejudiced him at trial, and the failures can be summarized as a failure to deve lop a defense theory and a failure to discover and locate additional witnesses and evidence. Petitioner’s conclusory allegations are insufficient to meet the prejudice prong of Strickland

. See United States v. Mealy , 851 F.2d 890, 908 (7th Cir. 1988); see also Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se plaintiffs must allege sufficient facts on which a recognized legal claim can be based, and that conclusory allegations will not suffice). In addition, although petitioner has articulated tw o specific failures of his trial counsel that he claims prejudiced him, neithe r failure is sufficient, either alone or together, to establish prejudice under Strickland . First, petitioner claims that his trial counsel should have cross-examined the prosecution’s witnesses with5 Petitioner also claims that his trial counsel shoul d have secured the

testimony of a third witness, Melody Alexander. Ho wever, the record indicates that Ms. Alexander’s whereabouts were unknown at th e time of petitioner’s trial. See F.R., Doc. 11, Ex. K (affidavit of petitioner’s tr ial counsel) at ¶ 5. In addition, petitioner has made no showing concerningwhat Ms. Alexander’s testimony would have been. -13- certain impeachment evidence and inconsistent state ments that were contained in their testimony at the preliminary hearing. See Aplt. Opening Br. at 25-26. Even assuming that petitioner has properly characterizedthe alleged impeachment evidence and inconsistent statements, petitioner ha s failed to establish a reasonable probability that this evidence would hav e resulted in a different outcome at trial. Second, petitioner has submitted affidavits from tw o witnesses, Kathy Peacock and Greg Morgan, who were at his residence around the time of the robbery on February 5, 2000. See Aplt. Opening Br., Exs. A and B. Petitioner claims that he was prejudiced because his trial counsel failed to secure these witnesses’ testimony for trial. 5 See Aplt. Reply Br. at 10-13. The affidavits fail to establish a reasonable probability that these wi tnesses’ testimony would have resulted in a different outcome at trial because: ( 1) the witnesses admit that they were not at petitioner’s residence at the time whenthe robbery allegedly occurred; and (2) the witnesses do not provide any testimony or evidence that affirmatively establishes that petitioner did not commit the robb ery.-14-

The judgment of the district court is AFFIRMED.

Entered for the Court
Monroe G. McKay Circuit Judge