* This order and judgment is not binding precedent ex cept under the

doctrines of law of the case, res judicata and coll ateral 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 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ DOUGLAS LANE PARKS, Petitioner-Appellant,

v. STEVE HARGETT, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 98-7068 (D.C. No. 97-CV-235-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON andBALDOCK , Circuit Judges.

Petitioner-Appellant filed a petition for rehearing seeking reconsideration of the order and judgment filed on February 19, 199 9. By separate order, the-2-

petition for rehearing was granted and Judge Henry recused himself from this matter. Judge Anderson is hereby appointed to this panel. After rehearing, the original order and judgment is reinstated without amendment, as set forth below. See Fed. R. App. P. 40(a)(4)(A) (“If a petition for panel rehearing is granted, the court may . . . mak e a final disposition of the case without reargument.”).

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. Douglas Lane Parks, a state inmate appearing pro se , seeks a certificate of appealability as required by 28 U.S.C. § 2253(c)(2) in order to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petit ion. We grant Parks a certificate of appealability, exercise jurisdiction , and affirm the judgment of the district court. In 1991, Parks was convicted in state court of thre e counts of “lewd molestation” of a six-year old girl and was sentenc ed to seven years’ imprisonment on each count, to run consecutively. Parks filed a direct appeal,1 In its response to the habeas petition in the distr ict court, the State of

Oklahoma conceded that Parks had exhausted his stat e remedies. (Doc. 6 at 2, ¶ 6.)

-3- raising, inter alia , the three issues raised herein. 1 The Oklahoma Court of Criminal Appeals affirmed his conviction by summaryopinion entered August 1, 1994. Parks did not file a state petition for post -conviction relief. Parks filed this petition for habeas relief with th e United States District Court on April 18, 1997. Parks challenges his stat e court convictions, setting forth three grounds for relief: (1) the informatio n charging him was so vague and indefinite he was unable to adequately prepare a de fense; (2) the state court improperly denied his request for a clinical examin ation of the alleged victim by a qualified medical expert; and (3) improper hearsay evidence admitted against him included facts of other crimes. The district court referred this matter to a magist rate judge, who issued a cursory report and recommended the action be dismis sed. See R. Doc. 8. The district court adopted the findings and recommendat ions of the magistrate judge in a summary order. See R. Doc. 10. Parks appeals this decision, reassert ing the same contentions set forth in his petition to the d istrict court and, additionally, complaining of the summary handling and “misapprehe nsion” of his § 2254 petition before the district court.2 The state dismissed one of the counts at trial beca use the victim only

testified as to three incidents of molestation. -4- We grant Parks a certificate of appealability as to the issue of the sufficiency of the charging information because we conclude that issue deserves further proceedings. See United States v. Sistrunk, 111 F.3d 91, 91 (10th Cir. 1997) (holding that a petitioner is entitled to the grant of a certificate of appealability if he raises issues “that are debatab le among jurists, or that a court could resolve . . . differently, or that the questi ons deserve further proceedings”). We review this matter de novo , as the district court made no factual determinations, only legal conclusions. See United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). Parks is proceeding pro se and consequently is entitled to the benefit of having his pleadings liberally read. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972).
I. Sufficiency of the Information The charging information in this case set forth fou r identically worded counts, each stating that: [O]n or between July 1988 and November, 1989 . . . defendant did unlawfully . . . look upon, touch and feel of the b ody and private parts of a six year old female child, in a lewd and lascivious manner . . . in Bryan County, Oklahoma. Tr. Transcripts, Vol. I at 179-181. 2-5-

Parks asserts the information “fails to allege the name of the purported victim or in any way distinguish the facts alleged in any single count from the alleged facts of any other count.” Appellant’s Br. at 29. He notes that from this description of the information, it is impossible to tell whether he was charged with molesting the same female child or different f emale children. He further asserts the information failed to state with partic ularity the specific location of each offense. Finally, he contends the charge, cov ering a seventeen-month period, is so general as to the time of the alleged molestations that he was deprived of any ability to establish an alibi defen se. Parks raised these arguments in pretrial motions before the trial court, seeking to dismiss the indictment, which were denied. Parks reasserted these arguments on d irect appeal, but the Oklahoma Court of Criminal Appeals summarily affirm ed his conviction without discussing Parks’ claims of error. In denying Parks’ habeas petition, the district cou rt cited Oklahoma law relating to the sufficiency of the charging information without addressing whether the charging information in Parks’ case satisfied e ither Oklahoma state law or federal constitutional standards. Parks appeals th is decision, asserting the sufficiency of the charging information is not mere ly a question of state law, but also a question of whether it complies with minimal constitutional standards. We
agree.-6-

It is true that “[t]he ‘sufficiency of an indictmen t or information is primarily a question of state law.’” Tapia v. Tansy , 926 F.2d 1554, 1560 (10th Cir. 1991) (quoting Franklin v. White , 803 F.2d 416, 418 (8th Cir. 1986). “On federal habeas review, we are not empowered to corr ect all errors of state law.” Johnson v. Gibson , No. 96-6336, 1998 WL 898300, *11 (10th Cir. Dec. 28, 1998); see also Fero v. Kerby , 39 F.3d 1462, 1474 (10th Cir. 1994) (federal habeas corpus relief does not lie unless there is ashowing that “a conviction violated the Constitution, laws, or treaties of the United States”). However, the notice provided by a state in a charging instrumentmust comport with the due process guarantee of a fair trial. See Jackson v. Virginia , 443 U.S. 307, 314 (1979) (it is “axiomatic” that “a person cannot inc ur the loss of liberty for an offense without notice and a meaningful opportunityto defend”); Wilkerson v. Wyrick, 806 F.2d 161, 164 (8th Cir. 1986) (applying this principle to habeas review of charging instrument). A defendant is ent itled to fair notice of the criminal charges against him under the Sixth Amendm ent’s right to a fair trial and the Fourteenth Amendment’s guarantee of due process , and claims that a charging instrument violated due process by not providing su ch fair notice are cognizable in habeas corpus actions. See Johnson , 1998 WL 898300 at *11; Hunter v. New
Mexico , 916 F.2d 595, 598 (10th Cir. 1990); Wilkerson , 806 F.2d at 164.-7-

The district court seems to have mistakenly assumedthe sufficiency of the charging information was solely a matter of state l aw, because it never examined the information to determine its compliance with th e United States Constitution and its attendant requirements. Because we review this matter de novo , we may affirm on any legal ground supported by the record. See Wolfgang v. MidAmerica Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997). Accordingl y, we turn to the constitutional sufficiency of the in formation and Parks’ claims of

error. “An indictment [or charging information] need only meet minimal constitutional standards, and we determine the suff iciency of an [information] by practical rather than technical considerations.” United States v. Dashney , 117 F.3d 1197, 1205 (10th Cir. 1997). A charging instrument is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense. See Hamling v. United States , 418 U.S. 87, 117 (1974); Dashney , 117 F.3d at 1205. The term “lewd molestation” in the information, tog ether with the charge Parks “looked upon, touched and felt the body and p rivate parts” of a six-year-old female, accurately reflect the statute on which he was convicted and appears sufficiently definite in legal meaning to give him notice of the general nature of3 The statute under which Parks received his convicti on states, in part, that

any person who knowingly and intentionally look[s] upon, touch[es], maul[s] or feel[s] the body or private parts of any child unde r sixteen years of age in any lewd or lascivious manner,” shall, upon conviction, be guilty of a felony and punished by imprisonment. See Okla. Stat. Ann. tit. 21, § 1123 (1985 Supp.). -8- the charge against him. 3 See Hamling , 418 U.S. at 118. The critical question is whether the information does so with the requisite specificity. “Where the statutory definition of an offense emplo ys generic terms, it is not sufficient to charge the offense in the same te rms employed by the statute; the indictment must ‘descend to particulars.’” United States v. Sullivan , 919 F.2d 1403, 1411 (10th Cir. 1990) (quoting Russell v. United States , 369 U.S. 749, 765 (1962)); see also Hamling , 418 U. S. at 117-118 (“[t]he language of the stat ute may be used in the general description of an offenc e, but it must be accompanied with such a statement of the facts and circumstance s as will inform the accused of the specific offence, coming under the general desc ription, with which he is charged.”) (quotation omitted). Parks asserts thathere, as in Russell , the information did not identify the essential facts, n amely the identity of the six-year old victim, the location of the alleged molestation , or the dates on which the incidents of molestation were alleged to have occur red. We need not decide whether the charging information in this case was sufficiently specific because it is clear that Park s received actual notice of the specific charges against him. “[D]ue process requi rements may be satisfied if a-9-

defendant receives actual notice of the charges aga inst him, even if the indictment or information is deficient.” Hulstine v. Morris , 819 F.2d 861, 864 (8th Cir. 1987)(citing Franklin v. White , 803 F.2d at 417. At his preliminary hearing, Parks received actual notice of the name and identi ty of the six-year old child and the fact that he was charged with three separate in cidents of molestation, one alleged to have occurred in his bedroom, another in his hot tub, and a third in the bathroom of his home. Thus, prior to trial, Parks had actual notice of sufficiently specific facts to respond to the charges and prepar e an adequate defense. With respect to Parks’ claim that the charging info rmation was fatally defective because it failed to allege any reasonabl e ascertainable time period within with the alleged molestations occurred, neit her the evidence provided at the preliminary hearing nor at trial narrowed the t ime frame to less than the seventeen-month period alleged in the information. The victim, a six-year old child, was unable to delineate any specific dates o r months when the molestations occurred. We have held that a charging information is sufficiently precise as to the time frame if the operative or approximate peri od of the crime is set out. See United States v. Edmonson , 962 F.2d 1535, 1541 (10th Cir. 1992) (indictment stating three-month time frame for conspiracy deeme d not prejudicial). Here, the information provided at the preliminary h earing did provide Parks with information about the specific factual circums tances surrounding each of the-10-

alleged incidents of molestation. We are satisfied from our review of the record that, from this information, Parks was able to pres ent a defense with respect to each of the alleged incidents. For example, notwit hstanding the lack of specific dates, Parks was able to present some alibi defense by presenting evidence that the hot tub in which one of the incidents of molest ation allegedly occurred was inoperative during the entire seventeen-month perio d. Thus, we conclude that Parks was able to mount an adequate defense and has not demonstrated any prejudice resulting from the lack of any specific d ates in the charging information. See Hunter , 916 F.2d at 600 (summarily rejecting argument that information charging criminal sexual penetration of a child during three-year period was deficient because it failed to identify specific dates for the crimes); Fawcett v. Bablitch , 962 F.2d 617, 619 (7th Cir. 1992) (charge of sexu al molestation of a child sometime during a six-month period held sufficient to permit defendant to defend against the charge; United States v. Nunez , 668 F.2d 10, 12 (1st Cir. 1981) (holding that generality in allegation of date is allowed where exact time of crime’s commission is not essential under criminal statute and no prejudice is shown). Thus, in light of the fact that Parks was able to d iscover at the preliminary hearing all of the facts that the State would attempt to prove at trial, we conclude that Parks has failed to establish that the lack of specificity alleged in the-11-

charging information prejudiced his substantial rig hts in any way. See Hulstine , 819 F.2d at 864. Parks does not claim that he was unfairly surprised by any evidence at trial as a result of the general indict ment. Cf. United States v. Stoner , 98 F.3d 527, 537 (10th Cir. 1996) (affirming convic tion despite variance between allegations of indictment and proof at trial becaus e no showing of prejudice). Nor does Parks claim in his habeas petition that the ch arging information put him in danger of double jeopardy. See id. at 536; see also United States v. Apodaca , 843 F.2d 421, 430 n.3 (10th Cir. 1988) (defendant is ad equately protected from double jeopardy because he could plead the entire record a s a bar to subsequent prosecution). For these reasons, we are satisfied that any deficiencies in the information did not deprive Parks of a fair trial o r due process.
II. Denial of Expert Examination Parks contends that his constitutional rights to co mpulsory process and due process were violated because the State trial courtimproperly denied his request for a clinical examination of the child victim by aqualified medical expert. Parks requested a clinical examination by an expert to de termine whether or not the child’s hymen was broken. “[T]o establish a violation of the right to compuls ory process, a fair trial or due process, a defendant must show a denial of fund amental fairness.” Richmond v. Embry , 122 F.3d 866, 872 (10th Cir. 1997), cert. denied, 118 S. Ct. 1065-12-

(1998). “It is the materiality of the excluded evi dence to the presentation of the defense that determines whether a petitioner has be en deprived of a fundamentally fair trial.” Id. (quotation omitted). Parks must make some showin g that the witness’s testimony would have been both favorable and material to the defense. See United States v. Valenzuela-Bernal , 458 U.S. 858, 867, 872 (1982). Parks has not shown that the excluded evidence woul d have been of such an exculpatory nature that its exclusion affected the trial’s outcome. See Richmond, 122 F.3d at 872. As the district court noted, Park s was not charged with a crime requiring penetration. Merely showing he was depri ved of the testimony of a medical witness is insufficient to establish a cons titutional violation. See Valenzuela-Bernal , 458 U.S. at 867. Moreover, his attorney conducte d crossexamination of the State’s medical expert. Thus, w e find the denial of an expert examination of the victim to challenge the State’s testimony that her hymen was broken did not render the trial fundamental unfair.
III. Testimony of Prior Crimes Finally, Parks complains the state court admitted i mproper hearsay evidence on other crimes he committed. However, it is clearfrom the record that trial counsel’s objection to this testimony was sustained , and the jury was immediately admonished to disregard the witness’s remark. We are satisfied from our review of the record that the remark did not prejudice Par ks. See Duvall v. Reynolds , 139-13-

F.3d 768, 788 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998) (“The improper admission of evidence of prior acts does not rise t o the level of constitutional error if the trial judge later instructs the jury t o disregard the evidence.”). The judgment of the district court for the Eastern District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge