This order and judgment is not binding precedent, except under the doctrines of law of the

case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and conditions of

10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 5/2/96

TENTH CIRCUIT

ROBERT EARL HEATH,

Petitioner-Appellant, 

v.

R. MICHAEL CODY,

Respondent-Appellee, 

No. 96-6007 

(W.D. Oklahoma)

(D.C. No. CIV-94-545-T)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, MURPHY, Circuit Judges. 

After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of the

appeal. See Fed. R. App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Robert Earl Heath appeals from the district court order which adopted the
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magistrate judge’s “Report and Recommendation” in dismissing Heath’s 28 U.S.C. §

2254 petition for a writ of habeas corpus.

On March 14, 1988, Heath was convicted in the District Court of Garfield County,

Oklahoma, of first degree rape, forcible sodomy, and second degree burglary. He was

sentenced to terms of imprisonment of 150, 99, and 99 years respectively, with the

sentences ordered to run consecutively. The sentences were enhanced because Heath had

previously been convicted of a felony.

As his grounds for habeas relief, Heath contends that:

1. He was denied due process and equal protection because good time credits were

not applied to his sentence in case no. 33,968, the prior felony that was used to enhance

his sentence in the present case. According to Heath, if the credits had been properly

applied, the prior sentence would have been completed more than ten years before his

present conviction and, thus, the prior conviction could not have been used for

enhancement purposes under Oklahoma law.

2. He was denied due process during parole revocation hearings for case no.

33,968. According to Heath, had his parole in 33, 968 not been improperly revoked, the

sentence in that case would have been completed more than ten years before his present

conviction and, therefore, could not have been used for sentence enhancement purposes.

3. He was denied a full and fair opportunity to litigate his Fourth Amendment

claims.
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4. He was denied effective assistance of counsel at trial and on appeal.

5. He was convicted in violation of the Sixth and Fourteenth Amendments

because he was required to wear prison clothing at his preliminary hearing and the voice

identification procedures utilized at the preliminary hearing tainted his in-court

identification.

6. He was denied due process and equal protection because an expert witness on

the subject of hair samples improperly testified on matters beyond the present state of the

art of forensic science and beyond the witness’ personal knowledge and improperly

assigned mathematical and statistical probabilities.

7. He was denied a direct appeal of his conviction in case no. 33,968, the prior

felony that was used to enhance his present sentence.

In his Report and Recommendation, the magistrate judge noted that Heath had not

raised issues 1 through 3 and 7 on direct appeal and that those claims were therefore

procedurally barred under Coleman v. Thompson, 501 U.S. 722 (1991), unless Heath

could demonstrate “cause” and “prejudice.” The magistrate judge went on to note,

however, that Heath had asserted that he was denied effective assistance of counsel at

trial and on appeal. In evaluating that ground for relief, the magistrate stated that he

would also effectively determine whether counsel’s performance was sufficiently

deficient to constitute “cause” for Heath’s failure to raise grounds 1 through 3 and 7 on

direct appeal. The magistrate judge ultimately concluded that neither trial nor appellate
 The district court denied Heath a certificate of probable cause on appeal. We grant issuance

of the certificate solely for the purpose of reaching the merits of the case.

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counsel had performed deficiently (resolving claim number 4) and that no cause existed to

overcome the procedural bar. Therefore, Heath was procedurally barred from asserting

claims 1 through 3 and 7 as grounds for habeas relief. As to the final two grounds for

relief asserted by Heath, the magistrate judge concluded that Heath had not demonstrated

that he was denied his rights under the Sixth and Fourteenth Amendments as a result of

the voice identification at the preliminary hearing, the testimony of the expert witness,or

the fact that he was required to wear orange jail overalls at his preliminary hearing.

On appeal, 1we conduct a de novo review of the record to determine whether the

district court erred in denying a petition for a writ of habeas corpus based upon the

contention of ineffective assistance of counsel, which is a mixed question of fact and law. 

Strickland v. Washington, 466 U.S. 668, 695 (1984). In order to prevail on a claim of

ineffective assistance of counsel, Heath must show (1) the performance of his attorney

was so deficient that “counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” Id. at 687, and (2) without such deficiencies the

result of the case would have been favorable to Heath. Id. at 694.

We agree with the magistrate judge that Heath has not demonstrated that either his

trial counsel or his appellate counsel was deficient. Furthermore, even assuming that his

counsel was deficient, Heath has not demonstrated that the result of his trial or appeal

would have been favorable absent the deficient performance. Accordingly, we conclude
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that the magistrate judge was correct when it concluded that Heath’s counsel had not

performed deficiently and that, therefore, Heath had not demonstrated cause for his

failure to raise issues 1 through 3 and 7 on direct appeal. Those issues are procedurally

barred under Coleman.

As to the other claims raised by Heath, we affirm for substantially the reasons set

forth in the magistrate judge’s Report and Recommendation of January 31, 1995, and the

district court’s final Order of December 14, 1995.

The judgement of the United States District Court for the Western District of

Oklahoma is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge