* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JUN 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD CHARLES ELLIS, Petitioner - Appellant, vs. JAMES L. SAFFLE; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 00-6316 (D.C. No. CIV-99-908-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **

Petitioner Edward Charles Ellis, an inmate appearin g pro se, seeks a certificate of appealability (“COA”) allowing him t o appeal the district court’s order denying relief on his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Because Mr. Ellis has failed to make “a substantial showing of the denial of a- 2 -

constitutional right” as required by 28 U.S.C. § 22 53(c)(2), we deny his request and dismiss the appeal. In January 1997, Mr. Ellis was convicted in Oklahom a state court of grand larceny, after former conviction of two or more fel onies, and sentenced to fifty years’ imprisonment. On direct appeal, Mr. Ellis r aised two claims: (1) the sufficiency of the evidence, and (2) that his sente nce was excessive. R. doc. 10, ex. A. The Oklahoma Court of Criminal Appeals (“OC CA”) affirmed his conviction. Id. , Ex. C. Mr. Ellis’ conviction arose out of an incident in which Mr. Ellis stole a gun worth more than fifty dollars from Bert Roberts. I n state post-conviction proceedings, Mr. Ellis raised six issues, all of wh ich centered around his allegation that the prosecutor had failed to disclo se a bill of sale allegedly showing that Frank Burleson, rather than Mr. Robert s, was the lawful owner of the gun on the date of the crime. Id. , Ex. D. The state district court denied Mr. Ellis’ motion, id. , Exs. E & F, and Mr. Ellis appealed. The OCCA aff irmed the district court’s denial of post-conviction relief, stating that: Petitioner’s application alleges six propositions o f error. A review of these propositions indicates that proposition 3, sufficie ncy of the evidence, was specifically addressed on direct appeal. Review of this issue is barred as res judicata . Petitioner’s claims of ineffective assistance of trial counsel and violation of due process, could have been raise d on direct appeal, but were not, and are waived. Petitioner’s remaining c laims are all part and parcel of his ineffective assistance of appellate c ounsel claim.- 3 -

Id. , Ex. H at 4. The OCCA then applied the test in Strickland v. Washington , 466 U.S. 668 (1984), to Mr. Ellis’ ineffective assistan ce of appellate counsel claim and held that it was without merit. Id. at 4-5. Mr. Ellis filed the instant federal habeas petition , raising five claims: (1) ineffective assistance of appellate counsel for fai lure to raise the issues set forth in Claims Two, Three, and Four; (2) violation of hi s due process rights due to the prosecutor’s failure to disclose evidence in violat ion of Brady v. Maryland , 373 U.S. 83 (1963); (3) insufficiency of the evidence; (4) ineffective assistance of trial counsel; and (5) a request for an evidentiaryhearing on his claims of ineffective assistance of counsel. See R. doc. 21, doc. 2 (federal habeas petition). In her Report and Recommendation, the magistrate ju dge found Claims Two, Three, and Four procedurally barred due to Mr. Ellis’ failure to raise them in state court and that Mr. Ellis’ allegations of i neffective assistance of appellate counsel did not constitute “cause” to excuse Mr. El lis’ procedural default. R. doc. 21 at 4, 11. The magistrate judge also found that Mr. Ellis was not entitled to habeas relief on his substantive ineffective ass istance of appellate counsel claim and was not entitled to an evidentiary hearin g. Id. at 12-14. The district court adopted the magistrate judge’s Report and Rec ommendation, denied Mr. Ellis’ petition, and denied a COA. R. docs. 27 & 3 6. Mr. Ellis raises the same five issues before this c ourt on appeal. See Aplt.1 Because Mr. Ellis had different trial and appellat e counsel and his claim

of ineffective trial counsel can be resolved on the trial record alone, his claim of ineffective trial counsel is procedurally barred. English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998). - 4 - Br. at 2. We will address Mr. Ellis’ claims that h is due process rights were violated by the prosecutor’s withholding of evidenc e (Claim Two) and that he had ineffective trial counsel (Claim Four) first. Mr. Ellis did not raise these issues on direct appeal, and the OCCA held that it was barredfrom reviewing these claims on post-conviction review according to Okla. Stat. tit. 22, § 1086. Because Mr. Ellis defaulted these issues in state court on an a dequate and independent state ground, 1 see Banks v. Reynolds , 54 F.3d 1508, 1514 (10th Cir. 1995), we may not consider these issues unless Mr. Ellis can demonstr ate “cause and prejudice” or a “fundamental miscarriage of justice.” Coleman v. T hompson , 501 U.S. 722, 750 (1991). Mr. Ellis asserts that his ineffective appellate co unsel is the “cause” of his procedural default. Hickman v. Spears , 160 F.3d 1269, 1272 (10th Cir. 1998). In order to constitute cause, the attorney’s conduct must fail to meet the twopronged test in Strickland v. Washington , 466 U.S. 668 (1984). Mr. Ellis claims that by failing to raise his alleged due process vi olation and the ineffectiveness of his trial counsel, his appellate counsel fell belowan “objective standard of reasonableness” and prejudiced his defense. Strick land , 466 U.S. at 687-88. Mr.2The “fundamental miscarriage of justice” exceptiondoes not apply here,

as Mr. Ellis does not make a substantiated claim of actual innocence. Lepiscopo v. Tansy , 38 F.3d 1128, 1131 (10th Cir. 1994). - 5 - Ellis’ arguments rest on his belief that if a 1995 bill of sale showing that the owner of the gun on April 11, 1995, was not the manthat he stole the gun from on October 10, 1996, had been introduced into evidence , the result of the trial would have been different. However, we agree with the ma gistrate judge that Mr. Ellis has failed to show how such evidence is exculpatoryor material or that any of the witness testimony given at trial was perjured or fa lse. R. doc. 21 at 11. Therefore, his appellate counsel was not ineffectiv e for failing to appeal either of these issues and does not constitute cause for Mr. Ellis’ procedural default. 2 Turning to the sufficiency of the evidence challeng e (Claim Three), the magistrate judge determined this claim was procedur ally barred. This is incorrect. Mr. Ellis raised this issue on direct appeal and th e state court addressed the issue on its merits. Therefore, we may grant Mr. Ellis f ederal habeas relief, but only if the state court determination of this claim “was co ntrary to, or involved an unreasonable application of, clearly established Fe deral law,” or “resulted in a decision that was based on an unreasonable determin ation of the facts in light of the evidence presented in the State court proceedin g.” 28 U.S.C. § 2254(d). Under federal law, we review a sufficiency of the e vidence challenge to determine “whether, after viewing the evidence in the light m ost favorable to the3 As Romano v. Gibson , 239 F.3d 1156, 1164 n.2 (10th Cir. 2001), points

out, this court’s authority is split as to whether, under AEDPA, we review a sufficiency of the evidence claim as a legal determ ination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1). However, we need not address this issue here as our result would be the same under either AEDPA section. - 6 - prosecution, anyrational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt.” Jackson v. V irginia , 443 U.S. 307, 319 (1979). In this case, on direct appeal the OCCA de termined that “there was sufficient evidence for a rational jury to find App ellant guilty of Grand Larceny.” R. doc. 10, Ex. C. This is not an unreasonable app lication of Jackson

. 3 The state court also directly addressed Mr. Ellis’ claim regarding ineffective assistance of appellate counsel (GroundOne). R. doc. 10, Ex. H. Therefore, our review is once again limited by 28 U .S.C. § 2254(d). In denying Mr. Ellis’ request for habeas relief, the OCCA appl ied the test in Stricklandand concluded that “[c]ounsel is not required to raise every issue available for appeal, and simply failing to raise an issue is insufficient to support a claim of ineffective assistance of appellate counsel.” R. doc. 10, Ex. H at 5. This is not an unreasonable application of Strickland

. Finally, we address Mr. Ellis’ request for an evide ntiary hearing (Claim Five). Because 28 U.S.C. § 2254(e)(2) does not app ly, see Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir. 1998), Mr. Ellis is entitled to an evidentiary- 7 -

hearing only if he can show that “his allegations, if true and if not contravened by the existing factual record, would entitle him to h abeas relief.” Id. (citation omitted). Mr. Ellis has not made this showing. We DENY Mr. Ellis’ request to proceed in forma paup eris, DENY a COA, and DISMISS the appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge