* This order and judgment is not binding precedent, except under the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

** Honorable Milton I. Shadur, Senior United States Di strict Judge, Northern District of Illinois, sitting by designati on. 

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

### APR 22 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAWLAND B. FLEEKS, Petitioner - Appellant, v. DAYTON J. POPPELL, Warden, Respondent - Appellee. No. 01-6405 (D.C. No. 00-CV-1887-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL and BRISCOE , Circuit Judges, and SHADUR , ** District Judge.

Petitioner Rawland B. Fleeks was convicted in Oklah oma state court on one count of burglary and one count of robbery. After seeking state post-conviction relief, Petitioner sought and was denied habeas rel ief in the Western District of Oklahoma. This court granted a certificate of appe alability (“COA”) on Petitioner’s ineffective assistance claim with resp ect to trial counsel’s failure to- 2 -

cross-examine Albert Lee Brown, Jr., regarding an a lleged plea deal that Brown received in exchange for his testimony against Peti tioner. We conclude that Petitioner’s claim is procedurally barred and that, because the claim also fails on the merits, the procedural bar cannot be excused fo r cause and prejudice. Therefore, we AFFIRM the district court’s denial of relief.

I. BACKGROUND
A. Factual Background and Trial Court Proceedings In April 1995, Petitioner was charged by informatio n in Garfield County District Court with one count of burglary in the fi rst degree and one count of robbery by force after former conviction of two or more felonies. A preliminary hearing was held in September 1996, and Petitioner’ s trial was held on May 12–13, 1997. The jury found Petitioner guilty on both counts. Based on the jury’s recommendation, the trial court sentenced Pe titioner to fifty-five years’ imprisonment on the robbery charge and forty-five y ears’ imprisonment on the burglary charge, with the sentences to be served co nsecutively. The evidence at trial was as follows. Luella Helms testified that on March 24, 1995, she had been visiting her elderly mother, Myrtle White, at Ms. White’s home in Enid, Oklahoma. Around 8:00 pm, Ms. Helms stepped into the dining room and saw a man dressed in tan coveralls and an orange ski mask standing in1 Detective Bob Pritchett testified regarding his inv estigation of the robbery.

None of his testimony, however, explained how Petit ioner became a target of the investigation into the stolen rings. Thomas J. Gibson, a forensic chemist for the Oklaho ma Bureau of Investigation, was called by the defense. Gibson’s testimony established that none of the DNA from blood samples at the crime sce ne matched Petitioner’s DNA. - 3 - front of the living room window. When she asked th e intruder what he wanted, he “rushed” her, grabbed her, and started hitting h er in the forehead with his fists. The intruder eventually threw her to the floor and demanded money. In her purse, Ms. Helms had about $25, which the intruder took. When he noticed her rings and started yanking on them, Ms. Helms took the rin gs off and gave them to him. Ms. Helms identified the two rings at trial, and th ey were entered into evidence. The first ring comprised of her wedding band, engag ement ring, and a ring guard. The wedding band had four diamonds, the engagement ring had one diamond, and the ring guard had six small diamonds. The second ring was a gold nugget with seven small diamonds. Ms. Helms was unable to test ify to the identity of her assailant. Only the testimony of two witnesses—Cheavel Cortez Lloyd and Albert Lee Brown, Jr.—linked Petitioner to the stolen rings. 1 Lloyd is Petitioner’s eighteenyear-old stepson. At the time of the robbery, Peti tioner was married to Lloyd’s mother and lived in the same house with her and Llo yd. Lloyd testified on direct examination that, on the evening of the robbery, he was in the kitchen of his home- 4 -

when Petitioner came in “real loud and sweaty,” satdown, and stated, “‘I got some rings.’” At trial, Lloyd identified the rings taken from Ms. Helms as those which had been in Petitioner’s possession. Lloyd t estified that, later that same night, he overheard one side of a telephone convers ation between Petitioner and an unknown person, during which Petitioner stated that he had just broken into “an old lady’s house” and had gotten some rings. Lloyd testified that Petitioner had fresh cuts on h is knuckles and that he was wearing brown coveralls and an orange ski mask and carrying a stick when he came into the house. Later in his testimony, howev er, when confronted by the prosecutor with a prior police statement, Lloyd con ceded that the coveralls Petitioner was allegedly wearing that night might h ave been blue. Lloyd also testified that he had seen Petitioner with two $100 bills sometime around the date of the crime. Finally, Lloyd confirmed that no one from the prosecutor’s office or from the Enid Police Department had promised him anything in exchange for his testimony or threatened him if he did not testify. On cross-examination, Petitioner’s trial counsel qu estioned Lloyd extensively about the inconsistencies between his t estimony at trial and a prior statement he had made to the police. The statementwas taken during an interview with Enid Police Detectives Don Brown andBob Pritchett- 5 -

approximately one month after the robbery. At the time he gave the statement, Lloyd was sixteen years old and in police custody o n a separate burglary charge. In the statement, Lloyd claimed that one evening th e month before, Petitioner rang the door bell. When Lloyd answeredthe door, Petitioner entered the house breathing hard and fast. According to Ll oyd’s statement, Petitioner was wearing black pants, black shoes and a black coat. In his testimony at the preliminary hearing and trial, however, Lloyd testi fied that Petitioner wore tan coveralls, an orange ski mask and carried a stick. During the cross-examination at trial, Lloyd’s test imony denying that any favors or deals were extended to him by the police or the prosecution never changed. He did admit, however, that the criminal charge for which he was in custody when interviewed by the detectives was eventually dropped. The other witness against Petitioner was Albert Lee Brown, Jr. Brown’s testimony forms the basis of the claim presented inthis appeal. At trial, Brown testified that in March and April of 1995, Petition er approached him regarding some ladies’ rings. Brown identified the rings at trial and testified that he had sold the nugget ring to Jerry Mitchell in April for$100 or $150 and had given all the money to Petitioner. He testified that he had sold the other ring to Laron Norwood in March for $200 or $250 and used the mone y to buy cocaine for- 6 -

himself and Petitioner. Brown testified that he di d not know where Petitioner had obtained the rings and that he had seen Petitioner wearing brown coveralls before. Brown also testified regarding how the police acqui red the rings from him. On April 12, 1995, Brown was approached by Detectiv es Don Brown and Bob Pritchett of the Enid Police Department with regard to the rings. The Enid police knew that Brown had had the rings in his possessionand wanted him to get them back. Brown stated that he felt some pressure to g et the rings back because he had taken possession of the rings without knowing w here they had come from. He was able to get Jerry Mitchell and Laron Norwoodto return the rings to the police. Finally, Brown testified that he had nine previous convictions and that at the time of his testimony he was serving a 15-year sentence for unlawful delivery of narcotics. On cross-examination, Petitioner’s counsel concentr ated on the inconsistencies between Brown’s testimony at the pr eliminary hearing and his testimony at trial. Defense counsel questioned Bro wn regarding his testimony at the preliminary hearing that he had seen Petitioner in either brown or blue coveralls, whereas on direct examination he testifi ed they were brown. She also further questioned Brown regarding whether he felt pressured into giving the police information about the rings to avoid prosecution for their theft. On direct- 7 -

examination, Brown testified that the police were n ot pressuring him to get the rings back. At the Preliminary Hearing, however, B rown had stated “if I didn’t get [the rings] back [the police] were wanting to i mplicate me in that crime.” Defense counsel further elicited that, at the time of the April 12, 1995, interview with the Enid police, Brown was under house arrest, the terms of which he had violated on several occasions. The gravamen of the claim on which we have granted a COA is that Petitioner’s trial counsel was ineffective for fail ing to cross-examine Brown on the possibility that he had in fact cut a deal with the Enid police to testify against Petitioner in exchange for a reduced sentence on a grand larceny charge pending against him when he was interviewed about the rings . The evidentiary bases for this claim are 1) the April 12, 1995, statement that Brown gave to the police detectives and further notes made by the detectives regarding communication with Brown on April 13, 1995; 2) a form that Brown fille d out in October 1995 in conjunction with the guilty plea that he entered on the grand larceny charge; and 3) Brown’s testimony at the preliminary hearing in September 1996. We will describe these seriatim. The first evidentiary basis is the April 12, 1995, statement Brown gave to police detectives Don Brown and Bob Pritchett regar ding his knowledge of the stolen rings. Brown told the officers that he susp ected Petitioner had been- 8 -

committing burglaries and that, approximately three weeks before the interview, Petitioner had come to him with the nugget ring and asked him to sell it. About a week later, he saw Petitioner with the wedding set and discussed the fact that Petitioner was trying to get rid of it. Brown did not admit in the statement that he had sold the rings for Petitioner; however, he agre ed to help the detectives locate the rings. The conversation then continued: DB [Detective Brown]: Okay, we uh, we understand that you’re on probation right now. AB [Albert Brown]: Right. DB: And how much longer do you have on probation? AB: Uh, well I’m on this house arrest, I got approximately you know three and a half years uh maybe three years and I h ave a five years suspended sentence. DB: Okay now have we promised you anything for talking to us. AB: No you haven’t. DB: Okay. Have you ask us for anything? AB: Yeah. DB: Okay. Do you have pending charges at this time? AB: Yes I do. DB: Okay and what are those charges? AB: Grand larceny, ALC. DB: Okay uh, what is it that you’ve ask us to do? AB: Well I’ve ask you know if you could put a word in or any kind of assistance I could get on this matter. DB: Okay. And what did, and what was our response to you? AB: Uh, that you know that you couldn’t promise me any thing. You would, you know, do some talking and see what you c ould do. DB: Okay. So we haven’t promised you anything? AB: No. DB: Nor have we intimidated or threatened you to make these statements. AB: No you haven’t.- 9 -

DB: Okay. And you’ve came in on your own free will an d freely talked to us . . . AB: Yes. DB: about this? AB: Yes I did. DB: And that your [sic] going to cooperate in assistin g us in try to locate this jewelry uh, freely? AB: Yes. (emphasis added). Detective Bob Pritchett’s notes from the next day, April 13, 1995, reflected that Albert Brown had located the wedding ring set and could buy it back for $200. Detective Pritchett arranged a meeting with Albert Brown and contacted Detective Brown to come as well. Albert Brown neve r showed up, but the detectives saw him on the street shortly thereafter . The detectives said they would give him the money to purchase the rings but that he had to wear a wire. Pritchett’s notes then state: [Brown] told us that he didn’t think that he wantedto wear the wire as it hadn’t been mentioned to him before. I told him th at there was no way I was going to give him the money without his being w ired. I told him that for all I knew he had the ring in his pocket and he denied that. I told him with out [sic] the wire there was no deal . About that time Emerson Clinton Dixon III came riding around the corner to check on[Brown]. Dixon knows me so I told [Brown] there would be no deal at this time

. (emphasis added). At trial, both the prosecution and defense counsel discussed Brown’s April 12, 1995, statement with him. Both sides questione d Brown about whether he felt he was pressured into obtaining the rings in order to avoid prosecution for their- 10 -

theft. Defense counsel also elicited that Brown wa s under house arrest at the time of the interview and had violated the terms of thathouse arrest. But defense counsel did not bring up the fact that Brown had ne w charges of grand larceny pending against him at the time of the interview, t hat Brown had asked the detectives for their assistance with those charges, or that Detective Bob Pritchett’s notes from April 13, 1995 indicated that the police had struck some type of “deal” with Brown. The second basis for Petitioner’s claim is that, in October 1995, in conjunction with his guilty plea to the grand larce ny charge, Brown filled out a form entitled “Plea of Guilty: Summary of Facts.” In response to the question, “Before the Court considers the plea and sentence r ecommendation, do you have any questions or wish to say anything further?,” B rown circled “No,” but then wrote, “I didn’t get the deal promised by the Enid police department.” He did not specify the details of the “deal” as he understood it; however, Brown did state in response to another question that he understood he was to receive a one-year sentence for grand larceny committed after two or m ore felony convictions. Offender information obtained from the Oklahoma Dep artment of Corrections confirms that Brown did in fact receive this senten ce. At trial, defense counsel did not adduce evidence r elated either to Brown’s one-year sentence on the grand larceny charge (desp ite his numerous prior felony- 11 -

convictions) or to his complaint that he did not ge t the deal promised to him by the Enid police. The third basis for the ineffective assistance of t rial counsel claim is Brown’s testimony at the September 1996 preliminaryhearing. Brown admitted at the preliminary hearing that he had sold the two rings for Petitioner. Regarding the April 12, 1995, interview with the police detec tives, Brown testified that the police approached him and asked if he could get the rings back. Brown did not know if he could, but stated that “[he] was kind of under the situation to where, you know, [he] had to get them back.” The prosecut or asked, “When you say you were under the situation, what do you mean by that? ” Brown answered, “Well, it was like they were—if I didn’t get them back they w ere wanting to implicate me in that crime.” Brown denied, however, that he was testifying at the preliminary hearing “to avoid prosecution in any way” or “to av oid implications in a particular crime.” Brown was then cross-examined by defense counsel; h owever, this was not the same counsel that represented Petitioner at tri al. Counsel questioned Brown about the fact that he had been on an early release program in April 1995 and that he had violated the conditions of his program and w as returned to the Enid correctional facility in May 1995. She also addres sed whether Brown felt as- 12 -

though he had to comply with the Enid police to avo id prosecution for the theft of the rings: Q: Now you indicated when you were talking to the pol ice of [sic] April 12th, or around that time of 1995, that you felt so mewhat caught between a rock and a hard spot. If you didn’t help them get back the rings, they may try to implicate you in this crime. A: Right. Q: And that was your feeling? A: Yes. Q: Okay. And is that still your feeling today that t hat is kind of what they meant at that time? A: Not necessarily. I had another charge pending also . And, you know, it was like—I had nothing to do with the crim e but I feel like it was just a bluff on they behalf to scare me into helping them. So, you know, I felt like why not. You know , I didn’t have anything to lose. Q: You indicated you had another charge pending? A: Yes. Q: What was that? A: That was for Grand Larceny From a Retailer. I was the manager at Goldie’s Patio Grill and some money came up missing and I was implicated in that and charged wi th that. Q: Okay. And what sentence did you receive for that? A: A one year sentence. Q: Time to do or suspended? A: Time to do. Q: Are those the only two felony convictions you have ; Unlawful Delivery of Narcotic and the Grand Larceny? A: That is what I’m serving time for. Q: Are those the only two you have? A: No. I have previews [sic] incarceration history. Q: Okay. How many felony convictions do you have? A: Maybe seven or eight. (emphasis added).- 13 -

At trial, defense counsel questioned Brown regardin g his fear of being prosecuted for the theft of the rings, but she did not address the fact that he had a grand larceny charge pending against him at the tim e of the April 12, 1995, interview, nor that he received only a one-year sen tence on that charge, despite his “seven or eight” prior felony convictions, as r evealed in this preliminary hearing testimony.

B. Direct Appeal and State Post-Conviction Proceedings Petitioner obtained new counsel and appealed his co nvictions and sentences to the Oklahoma Court of Criminal Appeals (“OCCA”). He did not raise his ineffective assistance of trial counsel claim, as r equired by Okla. Stat. Ann. tit. 22, § 1086. After a remand for a competency hearin g, the OCCA affirmed the conviction and sentence. In November 1999, Petitioner filed an application f or state post-conviction relief. This time he asserted his ineffective assi stance of trial counsel claims and argued that the ineffective assistance of his appel late counsel was the reason the claims had not been raised on direct appeal. In hi s motion for relief, he included the April 12-13, 1995, interview notes with Albert Brown, but did not include the October 1995 plea summary in which Brown alleged he did not get the deal the Enid police had promised him.- 14 -

The trial court denied Petitioner’s application forpost-conviction relief, and the OCCA affirmed, holding that Petitioner had waived his ineffective assistance of trial counsel claims by failing to ra ise them on direct appeal and that Petitioner’s ineffective assistance of appellate co unsel claims were without merit.

C. Section 2254 Proceedings In November 2000, Petitioner filed a petition for awrit of habeas corpus under 28 U.S.C. § 2254 in the Western District of O klahoma. He asserted seven claims for relief, including ineffective assistance of trial and appellate counsel. The district court permitted him to supplement the record with Albert Brown’s October 1995 “Plea of Guilty: Summary of Facts” form. The magistrate judge recommended that all of Petiti oner’s habeas claims be denied. She found that Petitioner’s ineffective as sistance of trial counsel claims were procedurally barred based on his failure to ra ise them on direct appeal and that his ineffective appellate counsel did not cons titute cause to excuse the procedural bar because his underlying trial counsel claims were without merit.2 Petitioner’s claims on appeal were: (1) the distri ct court judge failed to

conduct a de novo review; (2) his appellate counsel was ineffective in failing to raise claims based on trial counsel’s ineffectivene ss; (3) the police and the prosecution suppressed evidence that Lloyd and Brow n received lenient treatment in exchange for their assistance in the investigati on and prosecution of petitioner, and his trial counsel was ineffective in failing to adequately investigate and crossexamine Lloyd and Brown; (4) his trial counsel was ineffective in failing to investigate and put forth an alibi defense; (5) he is factually innocent; (6) his convictions violated the Double Jeopardy Clause; (7 ) he was denied a fair cross section of the community in the jury selection proc ess; (8) he was incompetent to stand trial; (9) there was insufficient evidence to support his burglary conviction; (10) he was denied a fair trial by the introduction of other-crimes evidence; and (11) his trial counsel failed to conduct adequate l egal research. - 15 - The district court adopted the magistrate’s recomme ndation in its entirety and denied Petitioner’s application for a COA. Petitioner applied to this Court for a COA, asserti ng eleven claims for relief. 2 We appointed counsel and granted COA only on the issue of whether Petitioner’s trial counsel provided ineffective ass istance in failing to crossexamine Albert Lee Brown, Jr. at trial regarding: ( 1) the fact that he had a grand larceny charge pending against him in Garfield County District Court at the time he agreed to cooperate with the police in the inves tigation of Petitioner; and (2) the fact that Brown subsequently entered a plea of guilty to the charge of grand larceny in that case and received only a one-year s entence in exchange for the plea despite numerous prior felony convictions. Pe titioner was also instructed to address whether this issue had been exhausted or wa s procedurally barred.3 Habeas petitioners are typically required to exhaus t state remedies before

filing federal habeas petitions. 28 U.S.C. § 2254( b)(1)(A). Respondent, however, has conceded that he waived his claim that Petition er failed to exhaust all state remedies. Although this Court may raise exhaustion sua sponte , it is an “unusual step” and we find there is no particular reason to do so in this case. Gonzales v. McKune , 279 F.3d 922, 926 (10th Cir. 2002) (en banc).

- 16 - For the reasons stated below, we exercise jurisdict ion pursuant to 28 U.S.C. §§ 1291 and 2253(a) and AFFIRM the district court’s denial of habeas relief. 3

II. DISCUSSION
A. Procedural Bar Generally, the Oklahoma courts will not review in c ollateral proceedings an issue that could have been raised on direct appeal but was not. Okla. Stat. Ann. tit. 22 § 1086. Applying this rule in the state po st-conviction proceedings, the OCCA determined that Petitioner’s ineffective assis tance of trial counsel claims had been procedurally defaulted because they were n ot raised on direct appeal. Because it found his ineffective assistance of appe llate counsel claims to be without merit, the OCCA also found there was no cau se and prejudice to excuse the procedural bar. The district court agreed and concluded that Petitioner’s failure to raise his ineffective assistance of tria l counsel claims did result in a procedural bar to that claim and that ineffective a ssistance of appellate counsel did not create cause and prejudice to excuse the fa ilure.4 Petitioner does not allege a fundamental miscarriag e of justice. - 17 - We review the district court’s finding of a procedu ral bar de novo. Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). On habeas re view, we will find a procedural bar on “issues that have bee n defaulted in state court on an independent and adequate state procedural ground, unless cause and prejudice or a fundamental miscarriage of justice is shown.” Steele v. Young , 11 F.3d 1518, 1521 (10th Cir. 1993) (emphasis added). We find th at Petitioner has failed to establish that Oklahoma’s bar was not independent o r adequate and that Petitioner has failed to demonstrate cause and prejudice to ex cuse the procedural bar. Therefore, Petitioner’s claim is procedurally barred. 4

1. Independent and Adequate State Procedural Grounds A procedural bar will be recognized in federal habe as proceedings only if there is an independent and adequate state ground for it. In English v. Cody , 146 F.3d 1257 (10th Cir. 1998) , this Court held that a procedural bar requiring the ineffective assistance claim to be raised on direct appeal can be adequate only if 1) the Petitioner had different trial and appellate counsel and 2) the ineffectiveness claim could have been resolved “upo n the trial record alone” or after adequately developing a factual record throug h some other procedural mechanism. Id. at 1263-64. In this case, Petitioner did have dif ferent trial and5 Even assuming that the preliminary hearing transcri pt and April 12-13,

1995, interview notes were in the record on direct appeal, the October 1995 “Guilty Plea: Summary of Facts” was not. This docu ment supported an important part of Petitioner’s theory regarding Brown. It supported the inference that at the time Brown initially spoke to the police regarding Petitioner, he believed he was getting some kind of deal with respect to his grandlarceny charge, and this information could have been used to impeach Brown. Thus, we conclude that Petitioner’s claim “could only be adequately develo ped through supplementation of the record on appeal or additional fact-finding.” English , 146 F.3d at 1264. - 18 - appellate counsel, but we agree with Petitioner that the issue of ineffective assistance of trial counsel could not have been res olved upon the trial record alone. 5 Because Petitioner’s claim required supplementationof the record on appeal, the next question to answer is “whether the applicable Oklahoma remand procedure was adequate to serve that purpose.” English , 146 F.3d at 1264-65. Rule 3.11 of Oklahoma’s Court of Criminal Appeals p rovides a mechanism through which a defendant may supplement the recordon direct appeal if he presents “clear and convincing evidence [of] a stro ng possibility trial counsel was ineffective.” Okla. Stat. Ann, tit. 22, ch. 18, Ru le 3.11(B)(3)(b)(i). In his § 2254 proceedings, Petitioner has not alleged that Rule 3 .11 was inadequate to allow him to supplement the record on his ineffective ass istance of trial counsel claim. In Hooks v. Ward , 184 F.3d 1206 (10th Cir. 1999), we explained that where “the record below is largely silent on the adequacyof Oklahoma’s Rule 3.11 [providing for remand on direct appeal], the resolution of this issue on appeal will6 In Hooks , we remanded to the district court for a factual i nquiry into the

adequacy of Oklahoma’s remand procedure. That deci sion, however, was based on the fact that the petitioner had filed his petit ion two years before Englishwas decided, and thus could not have anticipated the ne ed to discuss Oklahoma’s remand procedures. Hooks , 184 F.3d at 1217. In this case, there is no such justification for Petitioner’s failure to address the adequacy of the remand procedure because his habeas petition was filed in November 2000, after both Englishand Hooks were decided. See Spears v. Mullin , 343 F.3d 1215, 1252 n.31 (10th Cir. 2003). - 19 - depend on which party has the burden of proof to es tablish the adequacy or inadequacy of the state procedures.” Id. at 1216. We concluded that the burden to establish the affirmative defense of procedural bar rests on the Respondent, id. at 1217; however, it is the Petitioner’s burden to put the adequacy of the state remand procedure at issue in the first place: Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the inadequacy of the state procedure. Id. Because Petitioner has not put the adequacy of Ok lahoma’s remand procedure at issue, he cannot demonstrate that Oklahoma’s pro cedural bar is inadequate. Therefore, his claim is procedurally barred. 6

2. Cause and Prejudice Even where a procedural bar is found, however, an appellate counsel’s ineffectiveness in failing to raise ineffective tri al counsel on direct appeal can7An ineffective assistance of appellate counsel clai m must be presented to

the state courts as an independent claim before it may be used to establish cause for a procedural bar. Murray , 477 U.S. at 488-89. The district court found that Petitioner did present his ineffective assistance o f appellate counsel claim to the Oklahoma courts, and Respondent does not challenge that conclusion.

8 Although Petitioner presented his ineffective assis tance of appellate counsel claim to the Oklahoma courts, the OCCA neve r made a merits ruling on this specific issue. Thus, “we review the districtcourt’s legal conclusions de novo and its factual findings, if any, for clear error.” Smallwood v. Gibson , 191 F.3d 1257, 1264 (10th Cir. 1999). - 20 - constitute “cause” sufficient to excuse the bar, if the assistance provided by appellate counsel falls to the level of a constitutional violation. Murray v. Carrier , 477 U.S. 478, 488-89 (1986). 7Reviewing this issue de novo, 8 we conclude that the assistance of Petitioner’s appell ate counsel was not constitutionally ineffective. Therefore, Petitione r has not established cause and prejudice to excuse the procedural bar. To succeed on an ineffective assistance claim, Peti tioner must show both his counsel’s constitutionally deficient performance and prejudice. Strickland v. Washington , 466 U.S. 668, 687 (1984). To show constitutional ly deficient performance, a petitioner must show that his attorn ey “committed serious errors in light of prevailing professional norms such that hi s legal representation fell below an objective standard of reasonableness.” Castro v. Ward , 138 F.3d 810, 829 (10th Cir. 1998) (internal quotations and citations omitted). Counsel’s- 21 -

performance must have been completely unreasonable, not merely wrong. Hoxsie v. Kerby , 108 F.3d 1239, 1246 (10th Cir. 1997). To show prejudice, Strickland requires that a petitioner demonstrate “a reasonable probability that, but for counsel’s unpr ofessional errors, the result of the proceeding would have been different.” 466 U.S . at 694. The performance and prejudice prongs of Strickland may be addressed in any order and need not both be addressed if the petitioner fails to make a showing of one. See Boyd v. Ward , 179 F.3d 904, 914 (10th Cir. 1999) . In reviewing counsel’s decision to omit an issue onappeal, a court’s “scrutiny of counsel’s performance must be highly deferential.” Strickland , 466 U.S. at 689. “When considering a claim of ineffect ive assistance of appellate counsel for failure to raise an issue, we look to t he merits of the omitted issue. ‘If the omitted issue is without merit, counsel’s f ailure to raise it does not constitute constitutionally ineffective assistance of counsel.’” Hooks , 184 F.3d at 1221 (citing United States v. Cook , 45 F.3d 388, 393 (10th Cir. 1995)). The merits of Petitioner’s ineffective assistance of tr ial counsel claims must, therefore, be examined to determine whether his app ellate counsel’s representation was deficient.- 22 -

Because we find that Petitioner’s claim of ineffect ive assistance of trial counsel is without merit, his ineffective assistanc e of appellate counsel claim cannot establish sufficient cause and prejudice to overcome the procedural bar.

B. Ineffective Assistance of Trial Counsel The state district court and the OCCA did not reach the merits of Petitioners’ ineffective assistance of trial counse l claim, finding instead that it had been procedurally defaulted. Because this clai m was not heard on the merits by the state courts, we review the federal districtcourt’s conclusions of law de novo and its findings of fact for clear error. Smallwood , 191 F.3d at 1264. As described above, Petitioner must show both his trial counsel’s constitutionally deficient performance and prejudic e to succeed on this claim. Strickland , 466 U.S. at 687. Because we find that trial coun sel’s failure to crossexamine Brown on his grand larceny charge and one-y ear sentence for that crime neither constituted constitutionally deficient perf ormance nor caused prejudice, Petitioner’s ineffective assistance of trial counse l claim must fail. As described above, to show constitutionally defici ent performance, a petitioner must show that his attorney “committed s erious errors in light of prevailing professional norms such that his legal r epresentation fell below an objective standard of reasonableness.” Castro , 138 F.3d at 829 (internal- 23 -

quotations and citations omitted). Counsel’s perfo rmance must have been completely unreasonable, not merely wrong. Hoxsie , 108 F.3d at 1246. Petitioner argues that the only testimony that link ed him to the crime was the testimony of two questionable witnesses. Therefore , he concludes, it must have been constitutionally deficient performance for tri al counsel to fail to crossexamine one of those witnesses on a grand larceny c harge pending against him at the time that witness implicated Petitioner to the police, when that witness subsequently received only a one-year sentence on those charges, despite nine prior felony convictions. “Although counsel’s failure to impeach a key prosecution witness is potentially the kind of representation that falls ‘ outside the wide range of professionally competent assistance,’” Moore v. Marr , 254 F.3d 1235, 1241 (10th Cir. 2001) (emphasis added) (quoting Strickland , 466 U.S. at 690), this case simply does not demonstrate a failure to impeach. Trial counsel impeached Brown on the inconsistencies between his trial test imony and his preliminary hearing testimony regarding what Petitioner was wearing when he approached Brown about the rings. She also elicited testimonyfrom Brown regarding his reasons for helping the police. At the preliminaryhearing, Brown testified he got the rings back because he was afraid if he did not, the police would implicate him in the crime. At trial, however, he claimed he fel t pressure not from the police,- 24 -

but from himself. Finally, trial counsel impeached Brown with information that Brown was violating the terms of his house arrest at the time he met with Petitioner about the rings. On direct examination, Brown had admitted that he was serving a fifteen-year sentence on a drug crime at the time he implicated Petitioner and had nine prior felony convictions. Second, counsel could have feared that impeaching B rown regarding the alleged plea deal could have posed some logical inc onsistencies, and counsel could have made a strategic decision not to impeach Brown on those grounds. In October 1995, Brown filled out a form indicating th at he did not get the deal the Enid police had promised him on his sentence for th e grand larceny charge. If he had not received the deal, why did he testify again st Petitioner at the preliminary hearing a year later and again at the trial six mon ths after that? Certainly, Petitioner may have been able to imply that, at the time Brown implicated Petitioner—April 1995—he thought he was getting a deal from the police, which he subsequently did not get, but this still does no t explain why he would have testified at the preliminary hearing and trial. Fu rthermore, impeaching Brown on these grounds would have required that the jurors not only believe that Brown was lying, but that they also disbelieve the police detectives. This is because the April 12, 1995 notes reflect that the police clearl y asked Brown whether he was getting any kind of deal and that Brown responded that he was not. It is possible- 25 -

that counsel did not want to provoke the prosecutio n into calling the police detectives to rebut the implication that Brown had gotten a deal. In sum, trial counsel impeached Brown on numerous g rounds. Her failure to do so on one matter—a matter which might have be en difficult to convince the jury of—does not qualify as constitutionally ineffective assistance. See Gillette v. Tansy , 17 F.3d 308, 311 (10th Cir. 1994) (finding that c ounsel was not ineffective for failing to impeach a witness with r ecords of sales that would prove he was lying, when he instead impeached the witness “with questions concerning the animosity between the [witness] and petitioner” ). Further, trial counsel gave the jury many reasons t o disbelieve Brown’s testimony, which they rejected. Giving them one ad ditional reason to disbelieve Brown, when that reason had more than one possible explanation, does not create a “reasonable probability” that the outcome of this case would have been different. Cf. Strickland , 466 U.S. at 694. Because Petitioner cannot prove either deficient pe rformance or prejudice, he cannot establish the ineffective assistance of h is trial counsel. Therefore, his ineffective assistance of appellate counsel claim m ust also fail and there is no cause to excuse the procedural bar.9 Petitioner’s motion for permission to file an appen dix is GRANTED. - 26 - IV. CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s denial of habeas relief on the issue on which we granted COA. 9 We DENY COA on all other issues.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge