* This order and judgment is not binding precedent, e xcept under the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

### SEP 19 2000 

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

THOMAS LESTER PUGH, suing as: Tom Lester Pugh,

Petitioner-Appellant,

v. GARY L. GIBSON, Warden, Oklahoma State Penitentiary; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, sued as: Drew Edmondson, Attorney General of the State of Oklahoma,

Respondents-Appellees. No. 99-5229 (D.C. No. 96-CV-976-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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. Petitioner, Tom Lester Pugh, appeals the district c ourt’s dismissal of his habeas corpus petition brought pursuant to 28 U .S.C. § 2254. We grant a certificate of appealability as to all issues butone and affirm. In 1972, petitioner was sentenced to life imprisonm ent after his conviction in Oklahoma state court of first degree malice afor ethought murder. His conviction was affirmed by the Oklahoma Court of Cr iminal Appeals. Petitioner’s first federal habeas petition, filed p rior to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDP A), was dismissed without prejudice for failure to exhaust state remedies. When attempts to secure state post-conviction relief proved unavailing, petitione r filed a second habeas petition in the federal district court. The second federal petition was filed after the enactment of AEDPA. The first issue we address is whether AEDPA applies to this petition. Petitioner argues that, because his first federal p etition was filed pre-AEDPA, that Act should not apply. He maintains that the filing date of his second federal petition should relate back to the d ate of his first filing, and that the district court erred in applying AEDPA to his p etition. We disagree.-3-

Since petitioner filed his brief, the Supreme Court in Slack v. McDaniel , 120 S. Ct. 1595 (2000), has clarified the status of petitions such as this one.
In Slack , the petitioner filed a pre-AEDPA habeas petition in the district court. The court dismissed the petition without prejudice because of exhaustion problems. Petitioner eventually filed a second ame nded petition after the enactment of AEDPA. In addressing whether the seco nd petition was successive the Court stated: “A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims i s to be treated as ‘any other first petition’ and is not a second or successive petition.” Id. at 1605. See also McWilliams v. Colorado , 121 F.3d 573, 575 (10th Cir. 1997). Indeed, the Supreme Court counseled that itis “more appropriate to treat the initial mixed petition as though it had not been filed.” Slack, 120 S. Ct. at 1606. Petitioner’s first petition, therefore, f iled pre-AEDPA, is of no consequence. Treating his second petition, filed p ost-AEDPA, as “any other first petition,” the district court correctly appli ed AEDPA. In addition to his AEDPA argument, petitioner advan ces the following issues: (1) pretrial publicity denied him a fair trial; (2) the state suppressed evidence concerning promises of immunity to certainprosecution witnesses; (3) prejudicial closing argument denied him a fair trial; (4) the state’s refusal to afford him a timely parole hearing violated his rights under the Fourteenth-4-

Amendment; (5) the state suppressed exculpatory eye witness testimony; and (6) petitioner was denied effective assistance of trial counsel. The district court rejected petitioner’s first fourconstitutional claims on the merits; the remaining claims were held to be proced urally barred under Oklahoma law. Because AEDPA governs this case, petitioner must seek a certificate of appealability in order to obtain review of the dism issal of his habeas petition. See id. at 1603 (applying 28 U.S.C. § 2253(c)). For those claims decided on the merits by the distr ict court, petitioner must show that “reasonable jurists would find the distri ct court’s assessment of the constitutional claims debatable or wrong.” Id. at 1604. “[W]hen the district court denies a habeas petitionon procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should issu e when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Adams v. LeMaster , No. 99-2348, 2000 WL 1174646, at *2 (10th Cir. Au g. 18, 2000) (quoting Slack ,120 S. Ct. at 1604). We have reviewed the record in this case and the is sues brought before us and conclude that, with respect to petitioner’s fir st four claims, reasonable jurists could “find it debatable whether the petition state s a valid claim of the denial of a constitutional right,” see id. , and we, therefore grant a certificate of-5-

appealability as to those issues. We also hold that reasonable jurists could find it debatable whether the district court erred in di smissing petitioner’s claim of ineffective assistance of trial counsel on the basi s of procedural bar, and we also grant a certificate of appealability as to that iss ue. With regard to the issue of suppression of exculpatory eyewitness testimony, we hold that the district court was correct to invoke procedural bar to dispose of that claim and that no reasonable jurist could find the correctness of the district court’s procedural ruling debatable. We therefore deny a certificate of appealability as to that issue and dismiss the claim on appeal. We now address pe titioner’s remaining claims. Under AEDPA, petitioner will not be entitled to hab eas relief unless the state court’s adjudication of the merits of his cla ims “resulted in a decision that was contrary to, or involved an unreasonable applic ation of, clearly established” Supreme Court precedent or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Under the “contrary to” clause, a federal habeas co urt may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme ] Court on a question of law or if the state court de cides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identif ies the correct governing legal principle from [the Supreme ]-6- Court’s decisions but unreasonably applies that pri nciple to the facts of the prisoner’s case. Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000). Petitioner first argues that his trial was tainted by pretrial publicity and that he should have been granted a change of venue. On direct appeal, the Oklahoma Court of Criminal Appeals found that “all jurors co mposing the final panel stated that they would decide the case based upon the evid ence presented at trial and not from what they may have heard or read.” Pugh v. State , 528 P.2d 719, 727 (Okla. Crim. App. 1974). That court found further that “there is no evidence that the jury did not reach a verdict based solely on the evidence presented in court.” Id. After reviewing the record on appeal, we agree withthe district court that this decision by the Oklahoma Court of Criminal App eals was neither contrary to nor an unreasonable application of clearly establis hed Supreme Court precedent and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Oklahoma state court proceedings. See 28 U.S.C. § 2254(d). As his second argument, petitioner contends that hi s right to a fair trial was violated when the state suppressed evidence regardi ng promises of immunity to two state witnesses who testified against him. On direct appeal, the Oklahoma Court of Criminal Appeals found that “the jury was fully advised as to the past-7-

records of the witnesses . . . ; that they had acti ons pending against them, both in Oklahoma and other states; and that they hoped to g et something for their testimony in the instant case.” Pugh , 528 P.2d at 724. Based on these facts, the court held that no information material to the guil t or punishment of petitioner had been withheld from the jury. See id. Our review of the record again compels us to agree with the district court that this adjud ication cannot be the basis for federal habeas relief. See Williams , 120 S. Ct. at 1523. The third issue on which we have granted a certific ate of appealability is petitioner’s claim that a prejudicial closing argum ent denied him a fair trial. Specifically, petitioner charges that the prosecuti on’s appeal to societal alarm in his closing remarks abridged his right to due proce ss. The Oklahoma Court of Criminal Appeals rejected this claim because defens e counsel had not objected to the statements by the prosecutor nor had he asked that the jury be admonished. See Pugh , 528 P.2d at 727. Without explaining why it disregarded the finding o f procedural default by the Oklahoma Court of Criminal Appeals, the distric t court addressed the merits of this claim. See Pickens v. Gibson, 206 F.3d 988, 1001 (10th Cir. 2000) (affirming denial of habeas relief in part and reac hing merits of ineffective assistance claim after Oklahoma court had held it t o be procedurally defaulted). As did the district court, we have thoroughly exami ned the proceedings in this-8-

case and conclude that the isolated remarks complai ned of by petitioner did not make petitioner’s “trial so fundamentally unfair as to deny him due process.” Donnelly v. DeChristoforo , 416 U.S. 637, 645 (1974). The decision by the Oklahoma court to deny petitioner relief on this cl aim will not support the grant of a writ of habeas corpus under the standards of 2 8 U.S.C. § 2254(d). Petitioner next argues that the state’s refusal to afford him a timely parole hearing violates the Fourteenth Amendment and justi fies a release from custody. The Oklahoma Court of Criminal Appeals rejected thi s claim on the merits. As discussed by the district court, the facts under lying petitioner’s claim to a mandatory parole hearing no later than December 1 987 are in such disarray we cannot possibly conclude that the decision by the O klahoma Court of Criminal Appeals on this issue is either contrary to or an unreasonable application of clearly established federal law or is based on an u nreasonable determination of the facts in light of the evidence presented in the Oklahoma proceedings.
See 28 U.S.C. § 2254(d). We now turn to petitioner’s claim of ineffective as sistance of trial counsel. Petitioner raised this claim for the first time in his state post-conviction proceeding. The Oklahoma Court of Criminal Appeals held the issue to be procedurally barred because it had not been raised on direct appeal.-9-

In adjudicating this claim, the district court applied English v. Cody , 146 F.3d 1257 (10th Cir. 1998), to determine whethe r Oklahoma’s procedural bar would preclude review of petitioner’s ineffective a ssistance claim. In concluding that it would, the district court held that petitioner’s case met the two English conditions for such preclusion: because petitioner ’s original trial lawyer had new co-counsel on appeal, petitioner had an opportunityto confer with separate counsel on appeal; and the ineffectiveness claim co uld be resolved on the trial record alone. The court thus held petitioner’s ine ffective assistance claim to be procedurally barred. This court has not resolved whether the presence of new co-counsel on appeal along with the original trial counsel compli es with the “new-attorney-onappeal” requirement of English . Nor do we do so here. Instead, we address the merits of petitioner’s ineffective assistance of co unsel claim and agree with the district court that petitioner is not entitled to h abeas relief. Petitioner argues that his trial counsel failed to adequately investigate, prepare and present the testimony of Karl Tiger, an d that this was deficient performance which prejudiced petitioner. In order to make this showing, petitioner must establish that “counsel’s represent ation fell below an objective standard of reasonableness. To establish prejudice he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result-10-

of the proceeding would have been different. A rea sonable probability is a probability sufficient to undermine confidence in the outcome.” Williams, 120 S. Ct. at 1511-12 (quotation omitted). The state’s theory of this case was that petitionerand an accomplice, Albert McDonald, donned ski masks and trench coats, entere d the victim’s home, shot him in the head and left together. Police records in this case indicate that two young boys were playing in the yard outside the vic tim’s apartment on the night of the murder and witnessed a person or persons leaving the apartment shortly after hearing a series of “pops.” One of the boys was Kenny Simpson who testified at the preliminary hearing of the man ori ginally charged in this case, one Beaufort Bourland. The other youngster was Karl Ti ger. Petitioner met Tiger years later when both were incarcerated in the same prison. As part of his state post-conviction proceeding, petitioner presented anaffidavit of Mr. Tiger stating that he had seen only one man leave the house that night. Tiger further stated that, when shown a photographic lineup containing apicture of petitioner the day after the murder, he failed to identify petitioner as someone he had seen the night of the crime. As mentioned above, petitioner was convicted in 197 2. More than twenty years later, in 1994, petitioner filed his first ap plication for post-conviction relief in state court. By that time, many of the records of this case were no longer1 Kenny Simpson had also apparently moved from Tulsa with his mother by

the time of trial and could not be located. -11- available, apparently only one copy of the trial tr anscript remained, which petitioner’s counsel described as in “sad condition ,” Appellant’s App. Vol. I at 238, and petitioner’s trial counsel had died. O ur review of the evidentiary hearing held in the state district court, however, convinces us that petitioner has failed to establish that his trial attorney was ineffective. Petitioner’s attorney did not ignore the value of K arl Tiger as a defense witness and, in fact, issued a subpoena for his app earance. A second subpoena was also issued for Karl Tiger, on behalf of defend ant McDonald. Although the copy in the record is illegible, the representationby petitioner’s counsel at the hearing was that the return of service on the secon d subpoena indicated that Karl Tiger could not be found. Id. at 249. When efforts to locate the young Karl Tiger proved fruitless, petitioner’s attorney chose to read into the record the testimony from Kenny Simpson, which Kenny had given at the preliminary hearing for Beaufort Bourland. 1 While confusing and sometimes inconsistent, the thrust of Kenny’s testimony was that he saw one old grey-haired man leave the apartment after the shooting--not the two younger men in ski masks as the state was tryin g to prove. Given the situation facing him, this was the best petitioner’ s attorney could do in an attempt-12-

to get the potentially exculpatory evidence before the jury. Petitioner has failed to show that trial counsel’s representation fell be low an objective standard of reasonableness. Although for different reasons, we affirm the finding of the district court that petitioner’s claim of ineffecti ve assistance of trial counsel does not warrant federal habeas relief. As to the claim upon which we have denied a certifi cate of appealability, that the state suppressed the testimony of Karl Tig er, we agree that petitioner should have raised that claim on direct appeal and thus is procedurally barred from having it considered pursuant to a § 2254 peti tion. References to Karl Tiger are in the trial record, see Tr. at 539; see also Preliminary Information charging Beaufort Bourland with Murder (loose document label ed “Defendant’s Exh. 2”). Petitioner does not argue that there was cause and prejudice for his default or that failure to review this claim on federal hab eas would result in a fundamental miscarriage of justice. He argues inst ead that the Oklahoma courts reached the merits of this claim. This argument is unavailing. The Oklahoma Court of Criminal Appeals listed the three issues b rought in the post-conviction proceedings, discussed the facts of petitioner’s suppression claim briefly, and then stated: “Petitioner has failed to show that h e is entitled to any relief in a post-conviction proceeding. He has not raised any issues that he did not or could not have raised in his appeal.” Appellant’s App. Vol. II at 326. The fact-13-

that the court then went on to discuss the merits o f this issue as an alternative holding does not vitiate the initial finding of procedural bar. See Harris v. Reed , 489 U.S. 255, 264 n.10 (1989) (noting that “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.”). Petitioner’s request for a certificate of appealabi lity is granted as to all issues except the claim of suppression of eyewitnes s testimony. As to that claim, the request for a certificate of appealability is d enied, and that portion of this appeal is DISMISSED. The balance of the judgment o f the United States District Court for the Northen District of Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge