UNITED STATES COURT OF APPEALS TENTH CIRCUIT

LARRY EUGENE JACKSON,

Petitioner - Appellant, No. 00-5018

v. (N.D. Oklahoma) OKLAHOMA DEPARTMENT OF CORRECTIONS; JAMES A. SHAFFER; GARY CARNALIE, Director of Mansfield Law Enforcement Center; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. (D.C. No. CV-97-375-K)

ORDER Filed June 26, 2001

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

This matter is before the court on appellant’s peti tion for rehearing en banc. Appellant has filed a motion for permission to file an amended petition for rehearing en banc. The court vacates the previous Order and Judgment entered in this case on March 27, 2001, and replaces it with an amended Order and Judgment issued simultaneously herewith. The petition for r ehearing and the motion for permission to file an amended petition for rehearin g en banc are denied as moot,-2-

without prejudice to the filing of a petition for r ehearing from the amended Order and Judgment. ENTERED FOR THE COURT: Patrick Fisher, Clerk of Court

By: Amy Frazier Deputy Clerk* This order and judgment is not binding precedent, e xcept under the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 

### JUN 26 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY EUGENE JACKSON,

Petitioner - Appellant, No. 00-5018

v. (N.D. Oklahoma) OKLAHOMA DEPARTMENT OF CORRECTIONS; JAMES A. SHAFFER; GARY CARNALIE, Director of Mansfield Law Enforcement Center; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. (D.C. No. CV-97-375-K)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.1 This case has not enjoyed a smooth journey on appea l. We have issued

two orders and judgments, which were withdrawn foll owing petitions for rehearing. The result has never changed, however, nor has it in this order and judgment. - 2 - Petitioner Larry Eugene Jackson appeals from the de nial of his petition for habeas relief under 28 U.S.C. § 2254. A certificat e of appealability was granted, counsel was appointed, and the issues have been briefed. We affirm. 1

BACKGROUND On June 11, 1992, police officers executed a searchwarrant at an apartment in Tulsa, Oklahoma. There were four individuals inthe apartment at the time the warrant was executed, including Jackson and his gir lfriend, Sandra Malone. Ms. Malone answered the door when the police arrived atthe apartment and told the officers that she lived there. The police encountered Jackson in the apartment’s o nly bedroom, sitting on the bed. They directed Jackson to lie on the floor . After they handcuffed him and he stood up, they discovered .16 gram of marijuana on the floor very near Jackson’s leg. The police also found a triple-beambalance scale in the bedroom closet, and, on top of the bedroom dresser, a syrin ge and spoon that was bent and burnt at the bottom.- 3 -

In the closet there were also several items of clot hing hanging in plastic bags with dry cleaner receipts bearing Jackson’s name. The closet contained other items of clothing, some male and some female. The police discovered documents containing Jackson’s name in a dresser dr awer. One such document contained Jackson’s name and the address of the apartment. The officers also found a lease for the apartment, showing it to be l eased to a Don Roland. Jackson was charged with possession of marijuana af ter former conviction of two or more felonies, and possession of drug par aphernalia. Okla. Stat. tit. 22, § 860 provides for a bifurcated proceeding where a “defendant is prosecuted for a second or subsequent offense, except in those cases in which former conviction is an element of the offense.” Jackson was charged un der Okla. Stat. tit. 63 § 2-402(B)(2) which makes a “second or subsequent” possession of marijuana a felony with an enhanced sentence. The prior drug o ffense is not an element of that crime. See Gamble v. State , 751 P.2d 751, 753 (Okla. Crim. App. 1988). It is only utilized in sentencing for determining puni shment. Hence, the entire criminal proceeding is bifurcated—in the guilt-inno cence phase, the jury determines whether the defendant possessed marijuan a without any reference to prior convictions, and in the sentencing phase, it assesses punishment with reference to prior convictions. Accordingly, Oklahoma law forbids the- 4 -

introduction of evidence of the prior conviction in the guilt-innocence phase of a prosecution under § 2-402(B)(2). Nonetheless, at Jackson’s trial, the prosecution introduced evidence of Jackson’s prior convictions, including a prior conv iction for possession of marijuana. Jackson did not object. Also at trial, Jackson’s counsel explained in his opening argument that he intended to call Ms. M alone as a defense witness. He indicated she would testify that she lived at th e apartment and that Jackson only came to visit. When the time came to call her , she apparently could not be located, so the defense rested. When she appeared in the courtroom a short time later, the court refused Jackson’s motion to reopenthe case. Following a brief trial, the jury found Jackson gui lty on both charges and sentenced him to life imprisonment on the possessio n of marijuana, subsequent offense, charge and one year on the possession of d rug paraphernalia charge. Jackson appealed his conviction to the Oklahoma Cou rt of Criminal Appeals (“OCCA”), arguing insufficiency of the evid ence, error in the denial of his motion to reopen the case, and other issues notrelevant to this appeal. The OCCA affirmed his conviction. On November 8, 1996, Jackson filed a petition for p ost-conviction relief in state district court, arguing, inter alia , ineffective assistance of appellate counsel for failing to raise various issues on direct appea l, including a claim of error in2 Jackson’s application for post-conviction relief st ated as follows, under the

heading “CLAIM TWO Counsel Deficiency ”: “The petitioner would further argue that the court erred by allowing the state to introduce evidence of a prior conviction during the guilt-innocence phase of tria l.” Application for PostConviction Relief at 9. After arguing that the cou rt erred in permitting the introduction of that evidence, Jackson concluded th is section of his brief with the following: “Surely, in this instance, appellate co unsel’s conduct was ‘unreasonable considering all the circumstances, an d so undermined the proper functioning of the adversarial process that the tri al review cannot be relied on as having produced a just result.’” Id. at 13 (quoting Strickland v. Washington , 466 U.S. 668, 686 (1984)). - 5 - the introduction of evidence of Jackson’s prior mar ijuana conviction during the guilt-innocence phase of his trial, 2 denial of Jackson’s motion to reopen the case to permit Sandra Malone to testify, and other state law violations. The state district court held that Jackson’s claims were proc edurally barred and that his appellate counsel was not ineffective. He appealed that denial to the OCCA, which affirmed the state court’s denial of his peti tion for post-conviction relief. Jackson filed a second application for post-convict ion relief on October 14, 1998, arguing that his sentence for possession of m arijuana was illegal. The state district court denied his application and the OCCA affirmed. On April 12, 2001, Jackson filed a third post-conviction application, arguing that evidence of prior convictions was improperly introduced in the guilt- innocence phase of his trial, and that his appellate counsel was ineffective in f ailing to raise this claim. The state district court held those issues procedurallybarred.- 6 -

This federal habeas petition was filed by Jackson o n April 21, 1997, contending: (1) the evidence was insufficient to s upport his conviction; (2) the trial court abused its discretion in denying his mo tion to reopen the case to present Ms. Malone as a defense witness; (3) his se ntence was illegal and constituted cruel and unusual punishment because itwas doubly enhanced; (4) his appellate counsel was ineffective in failing to rai se on appeal (a) an improper jury instruction under the authority of Flores v. State , 896 P.2d 558 (Okla. Crim. App. 1995); (b) the introduction of evidence of the prio r conviction during the guiltinnocence phase; and (c) the double enhancement of his sentence; and (5) the application of procedural bar to the Flores issue violates state law and due process. The district court denied his habeas peti tion, concluding that: Jackson’s claim that his sentence was illegal is pr ocedurally barred; his claims alleging insufficiency of the evidence, erroneous d enial of the motion to reopen the case, and ineffective assistance of appellate c ounsel do not warrant relief under § 2254(d); and his claim arising out of impos ing a procedural bar on the Flores issue was meritless. Jackson argues on appeal that: (1) the state court s unreasonably applied Jackson v. Virginia , 443 U.S. 307, 319 (1979) in determining that ther e was sufficient evidence linking him to the marijuana f ound on the bedroom floor, as required to support a conviction for possession in Oklahoma; (2) the state courts- 7 -

denied Jackson due process by refusing to allow himto reopen his case to present his only defense witness, who would have testified that Jackson did not live at the apartment where the marijuana was found; and (3) Ja ckson was denied the effective assistance of appellate counsel where app ellate counsel did not raise the violation of Okla. Stat. tit. 22, § 860.

DISCUSSION We begin by agreeing with the district court that J ackson’s claims have been exhausted for purposes of habeas review. Our standard of review in a case, like this one, under the Antiterrorism and Effectiv e Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (199 6), depends upon whether the state court addressed Jackson’s claims on the m erits. “If the claim was not heard on the merits by the state courts, and the fe deral district court made its own determination in the first instance, we review the district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” Elliott v. Williams , 2001 WL 473979 at *1 (10th Cir. May 4, 2001) (quotation omitted). If the habeas petitioner’s claims were adjudicated on their merits, the petitioner “will not be entitled to habeas relief u nless [he] can establish that the state court determination of [his] claims was contr ary to, or an unreasonable application of, clearly established Supreme Court p recedent, or was an- 8 -

unreasonable determination of the facts in light of the evidence.” Romano v. Gibson , 239 F.3d 1156, 1163 (10th Cir. 2001) (citing 28 U .S.C. §§ 2254(d)(1) and (2)). Thus, under § 2254(d)(1), “a federal court m ay grant a writ of habeas corpus only if the state court reached a conclusion opposi te to that reached by the Supreme Court on a question of law, decided the cas e differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal princip le to the facts of the petitioner’s case.” Walker v. Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000), petition for cert. filed , (April 18, 2001) (No. 00-9558); see Williams v. Taylor , 529 U.S. 362, 412-13 (2000). A state court decisio n is an “unreasonable application” of federal law “if the state court ide ntifies the correct legal principle from th[e Supreme] Court’s decisions but unreasonab ly applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clea rly established federal law erroneously or incorrectly. Rather, that applicati on must also be unreasonable.” Id. at 411. With respect to Jackson’s first two claims, concern ing sufficiency of the evidence and the refusal to reopen his case to pres ent a defense witness, we conclude that the district court reviewed the evide nce presented at trial and- 9 -

correctly determined that Jackson had not satisfiedthe standard set out in § 2254(d). We accordingly affirm on those issues f or substantially the same reasons set forth in the district court’s January 1 2, 2000, order. Jackson’s ineffective assistance of counsel claim h as been the more problematic one. Jackson argues that his appellate counsel was ineffective in failing to argue in his direct appeal that it was aviolation of Okla. Stat. tit. 22, § 860 for the court to permit the introduction, dur ing the guilt-innocence phase of the trial, of Jackson’s prior conviction for mariju ana possession. Because our standard of review depends on whether the state courts addressed this issue, we first examine that questio n. We have carefully examined the pleadings and other materials filed by Jackson in the state courts following his conviction. In his first application to the state district court for post-conviction relief, Jackson clearly raised the issue of ineffec tiveness of appellate counsel in connection with the admission of his prior marijuan a possession conviction. He raised it in his appeal to the OCCA from the denial of that application. What is less clear is whether the lower state court or the OCCA actually addressed the issue in their dismissal of his application and sub sequent affirmance of that dismissal. Neither the state district court nor the OCCA descr ibed this issue clearly in their recitations of the issues Jackson presented t o them. However, the state- 10 -

district court apparently recognized the existence of Jackson’s general claim of ineffective assistance of appellate counsel, as it stated the appropriate standard under Strickland v. Washington , 466 U.S. 668 (1984) and concluded: “[e]xamination of the record reveals that Petitione r’s arguments fail to overcome the first tier of the Strickland test. Petitioner’s appellate counsel acted as a reasonably competent attorney under the facts and c ircumstances of this case.” Order at 4-5. The OCCA also briefly alluded to the claim: “Petitioner has not established how his counsel’s performance was defic ient under prevailing professional norms, the first of the two-pronged te st for ineffective counsel.” Order at 2. In view of these pronouncements, the f ederal district court in this case concluded that the state courts had addressed Jackson’s ineffective assistance of counsel claim on its merits, and, accordingly, p roceeded to determine whether the decision of the state appellate court represent ed an unreasonable application of the law to the facts under § 2254(d)(1). It hel d it did not. In this appeal, Jackson argues that the district co urt erred in its determination that the Oklahoma courts addressed th e particular ineffective assistance of counsel claim based upon the violatio n of § 860. There is some merit in this argument. The state courts’ treatmen t of this claim was, at best, summary. There was no explanation as to why Jackso n’s counsel was not ineffective in failing to argue the § 860 issue, no r was there any discussion of- 11 -

whether Jackson suffered prejudice under Strickland . However, we have held that “we must uphold the state court’s summary decision unless our independent review of the record and pertinent federal law pers uades us that its result contravenes or unreasonably applies clearly establi shed federal law, or is based on an unreasonable determination of the facts in lightof the evidence presented.” Aycox v. Lytle , 196 F.3d 1174, 1178 (10th Cir. 1999). Such indep endent review is not de novo review: “[o]ur review is in fact de ferential because we cannot grant relief unless the state court’s result is leg ally or factually unreasonable.” Id. ; see also Bell v. Jarvis , 236 F.3d 149, 163 (4th Cir. 2000) (en banc), petition for cert. filed (March 29, 2001) (No. 00-9290) (following Aycox ). Accordingly, we could independently review the state courts’ sum mary conclusion that Jackson was not denied effective assistance of appellate co unsel and determine whether that result was legally or factually unreasonable. However, because we have some uncertainty in this p articular case as to whether the state courts actually addressed this is sue, given the flawed way in which they articulated Jackson’s presentation of th e claim, we alternatively conduct a full de novo review of the federal distri ct court’s resolution of this issue, as if the state courts had not addressed it on its merits. The problem in this type of case is that the federa l constitutional question, ineffective assistance of counsel, in turn rests entirely on a question of state, not- 12 -

federal, law. In such circumstances, we do not sitas a court of review of state law except in the most narrow sense. “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers , 497 U.S. 764, 780 (1990). We do not sit to relitigate state court trials. Thus, in the context of an ineffective assistance of counsel claim, “[a]n appellate attorney’s perfor mance may be deficient and may prejudice the defendant only if counsel fails t o argue a ‘dead-bang winner,’ which is defined as ‘an issue which was obvious from the trial record, . . . and one which would have resulted in a reversal on appeal.’” Walker , 228 F.3d at 1237. While it seems clear that the allowance of evidence , during the guiltinnocence phase of the trial, of Jackson’s prior marijuana conviction violated Okla. Stat. tit. 22, § 860, that alone does not compel the conclusion that an appeal of that error would have resulted in reversal—i.e., that the issue is a “dead-bang winner” and that, assuming the state courts missed the issue in this case, they would have acted differently had they given it a fu ll review. As Jackson points out, the Oklahoma courts have rec ognized the potentially prejudicial effect that prior convictions can have on the guilt-innocence phase of a trial. See Gamble v. State , 751 P.2d 751, 753 (Okla. Crim. App. 1988) (“This Court has always been greatly concerned with the pr ejudicial effect of prior- 13 -

convictions which are introduced during the guilt-i nnocence phase of trial.”). Thus, violations of § 860 may constitute reversible error under state law. See id. However, we do not read the Oklahoma cases as estab lishing a per se or automatic rule regarding reversal following every v iolation of § 860. Rather, the courts have acknowledged that such error is subjectto a review for harmlessness. In Richardson v. State , 600 P.2d 361, 366-67 (Okla. Crim. App. 1979), the court found that an error occurred when counsel referred to a prior conviction during the guilt-innocence phase, but concluded “it was harmless in this case because there was sufficient independent evidence for the j ury to convict.” More recently, in Mooney v. State , 990 P.2d 875 (Okla. Crim. App. 1999), the defendant argued that the admission of a prior conviction during the guilt-innocence phase of a murder trial violated § 860. The court held that “ [e]ven if error occurred by the admission [of evidence of the prior conviction], [d efendant] has failed to demonstrate any prejudice.” Id. at 885. Most recently, the Oklahoma Court of Criminal Appea ls found reversible error in the introduction of evidence of prior conv ictions in the guilt-innocence phase of a murder trial. Pickens v. State , 19 P.3d 866, 878 (Okla. Crim. App. 2001). However, the court made it clear that such error is subject to review for harmlessness: “[a]lthough we believe the error was inadvertent, we cannot find it was harmless beyond a reasonable doubt.” Id.3 Furthermore, since counsel did not object to the introduction of evidence

of the prior conviction, the Oklahoma courts would only review its introduction for fundamental error. See Bowie v. State , 906 P.2d 759, 764 (Okla. Crim. App. 1995) (“Failure to object waives all but fundamenta l error.”). In concluding that the state court did not unreasonably apply the law to the facts of this case, the federal district court found no fundamental error i n the admission of the prior conviction. We agree that no such error occurred. - 14 - Accordingly, the Oklahoma courts do not apply an automatic rule of reversal whenever § 860 is violated. Rather, such errors are subject to review to determine their effect on the trial’s outcome. Ou r review of the record in this case convinces us that the admission of the prior c onviction would be considered harmless, or not prejudicial, error, and that the O klahoma courts would reach that conclusion. 3 Thus, this issue was not a “dead-bang winner” whi ch “would have resulted in a reversal on appeal.” Walker , 228 F.3d at 1237; see also Smith v. Robbins , 528 U.S. 259, 285 (2000) (holding that to show pr ejudice from ineffective assistance of appellate counsel, petiti oner must “show a reasonable probability that, but for his counsel’s [deficient performance], he would have prevailed on his appeal”). Accordingly, counsel’s performance was not ineffective under Strickland

.- 15 - CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s denial of Jackson’s habeas petition. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge