* This order and judgment is not binding precedent, e xcept under the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

### FEB 20 1997 

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

BARBARA LYNN BELL,

Petitioner-Appellant,

v. NEVILLE MASSIE, Warden of Mabel Bassett Correctional Center; and DREW EDMONDSON, Attorney General of the State of Oklahoma,

Respondents-Appellees. No. 96-5188 (D.C. No. 95-C-169-H) (N.D. Okla.)

ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and MURPHY, Circuit Judges.

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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner-Appellant Barbara Lynn Bell appeals the district court’s order dismissing her petition for a writ of habeas corpus . Because the chronology of Ms. Bell’s post-trial filings demonstrates that she did not fairly present the substance of her claim to the courts of Oklahoma, w e affirm.

BACKGROUND Ms. Bell was convicted of second-degree murder in the district court of Tulsa County, Oklahoma, on September 30, 1993. Sub sequently, she had difficulty obtaining a complete and accurate transc ript for use in her direct appeal to the Oklahoma Court of Criminal Appeals. Both parties to this appeal agree that the court reporter initially produced a trial transcript that contained numerous discrepancies and omissions. Of primary significan ce was the omission of allegedly hostile remarks made by the trial judge, because Ms. Bell intended to argue on appeal that these remarks affected the fun damental fairness of her trial. The court of criminal appeals granted Ms. Bell’s mo tion to remand the matter to the district court to correct the transcr ipt. Under the direction of a different district court judge, the transcript was amended to incorporate some of the recollections of Ms. Bell, counsel for both parties, and the court reporter. Ms. Bell maintained, however, that the only principled way to correct the transcript was through the use of audiotapes that the court re porter had allegedly made as a-3-

backup to the stenographic record of the trial. Th e court reporter denied the existence of the audiotapes. On July 21, 1994, Ms. Bell filed a motion to revers e conviction in the court of criminal appeals, arguing that the lack of a complete and accurate transcript deprived her of the right to a meaningful appeal. She asked for the case to be remanded for a new trial and, additionally, for an evidentiary hearing on factual issues surrounding the court reporter’s failure to preserve the audiotapes. She claimed that, to the extent that the court reporterhad intentionally destroyed the audiotapes, the prosecution would be barred from co nducting a retrial. On February 14, 1995, the court of criminal appeals denied the motion to reverse conviction, holding that the amended transc ript reasonably and accurately reflected the events at trial. Concerning the alle ged destruction of the audiotapes, the court observed that there is no statutory rightto electronic recording of proceedings and that, if a recording of Ms. Bell’s trial existed, it was only a supplement to the official stenographic method of t he court reporter. Ms. Bell filed a petition for writ of habeas corpus in federal district court on February 22, 1995. The gist of her argument was that requiring her to proceed on appeal with the existing transcript amounted to a violation of her constitutional rights. Before the district court ruled on the pet ition, however, the court of criminal appeals reversed Ms. Bell’s conviction on the basis of an erroneous jury-4-

instruction and remanded the case for a new trial. A new trial judge and a new prosecutor were appointed for the retrial. In the habeas proceedings, Ms. Bell shifted the foc us of her argument from prejudice on appeal to a bar to prosecution. Her t heory was that a new trial could not remedy a due process violation attributable to intentional misconduct of court personnel. The district court permitted discovery into the factual circumstances surrounding the alleged destruction of the audiotap es. As the district judge observed, discovery developed in the habeas proceed ings “went a long way to developing a fact record upon which one could certa inly reach the conclusion that fundamental principles of justice have been violate d,” R. II at 286, but the record was “not sufficiently developed . . . to fully reco rd . . . the nature and content of that conduct,” id. at 274. On July 12, 1996, the district court dismissed Ms. Bell’s petition without prejudice, based on three alternative grounds. We need discuss only the second basis for the district court’s ruling, that is, Ms. Bell’s failure to exhaust state remedies.

DISCUSSION We review the district court’s factual findings und er the clearly erroneous standard and its legal conclusions de novo. Matthe ws v. Price , 83 F.3d 328, 331 (10th Cir. 1996). In light of the district court’s finding that Ms. Bell had-5-

produced evidence of a “violation of fundamental pr inciples of justice,” we grant a certificate of appealability. See 28 U.S.C. § 2253(c). A person in custody pursuant to a judgment of a state court must first exhaust the remedies available in the state courts before resorting to habeas proceedings in federal court. See 28 U.S.C. § 2254(b)(1). The federal claim “must be fairly presented to the state courts befor e it can be raised in federal court.” Johnson v. Cowley , 40 F.3d 341, 344 (10th Cir. 1994). Our statements on exhaustion in Jones v. Hess , 681 F.2d 688, 694 (10th Cir. 1982) are directly applicable to Ms. Bell’s pe tition: A federal claim is unexhausted where it presents a materially different claim and stronger evidentiary case than was before the state court. The state courts must have had an opportunity to pa ss on the claim in light of a full record, and where the fact ual basis for a claim was not presented to the state courts, the claim is unexhausted. Although bits of evidence which were not before the state courts will not render a claim unexhausted, where a federal hab eas petitioner presents newly discovered evidence or other evidenc e not before the state courts such as to place the case in a signifi cantly different posture, the state courts must be given an opportun ity to consider the evidence. Id. (internal citations and quotation marks omitted). Discovery during the habeas proceedings placed Ms. Bell’s speculation and allegations about the alleged destruction of the tr ial audiotapes in a significantly different posture. We agree with the district court that Ms. Bell had not fairly-6-

presented the merits of her claim concerning a bar to reprosecution to the Oklahoma state courts and thus had not exhausted he r state remedies. We also note that Ms. Bell’s state court proceeding s have led to the recusal of the original trial judge and the appointment of a new prosecutor. Accordingly, Ms. Bell has not demonstrated circumstances which w ould make the state corrective process ineffective and excuse the exhau stion requirement. See 28 U.S.C. § 2254(b)(1)(B). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court John C. Porfilio Circuit Judge