* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of 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. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The Court generally disfa vors 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. 

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

### JAN 30 2002 

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

CRAIG H. BONDY, SR.,

Petitioner-Appellant,

v. SONNY SCOTT, Warden; DREW EDMONDSON, State Attorney General, Respondents-Appellees. No. 01-6156 (D.C. No. 99-CV-2119-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.

Petitioner Craig H. Bondy, Sr., a state inmate appearing pro se , appeals the district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Bondy has asked to proceed in forma pauper is, and has requested a-2-

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253. Additionally, Bondy has filed a “Motion for Judgment,” based upon the government’s decision to forgo filing a responsive brief. Because Bondy has failed to make a substantial showing of the denial of a constitutional right, we deny his request for a COA and dismiss the appeal.
I Bondy was convicted on February 14, 1997, of two co unts of child molestation involving his step-daughter, for which he was sentenced to two consecutive fifteen-year terms of imprisonment. On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Bondy asserted the following: (1) that the trial court erred in refusing to instr uct the jury on the necessity of corroboration and caution in assessing the victim’s credibility; (2) that the repetition of the allegations through hearsay testi mony of multiple witnesses was improper bolstering of the victim’s testimony underOklahoma law; and (3) that the trial court erred in admitting certain expert t estimony involving the correlation between child abuse and the existence of physical f indings to corroborate that abuse. The OCCA affirmed the conviction on June 5, 1998. In his application for state post-conviction relief , Bondy raised the following ten grounds for reversing his conviction: (1) the trial court improperly refused a line of quest ioning designed to show state witness Dorothy Bondy was biased;-3-

(2) trial counsel was ineffective in not introducing a letter written to Bondy by his wife, and appellate counsel was ineffe ctive for not raising the issue on appeal; (3) the state offered testimony that it knew or should have known was coerced, perjured, and misleading; (4) state witness Russell Johnson’s testimony was perj ured and misleading; (5) evidence admitted through state witness Detective Teresa Sterling was manufactured and prejudicial; (6) state witness Mary Vinson was unqualified to eithe r conduct or testify about a forensic interview with the victim; (7) state witness Sterling’s testimony was unreliable and misleading; (8) the victim’s testimony was coerced, misleading, an d unreliable; (9) appellate counsel was ineffective for not raising grounds three through eight, above, on direct appeal; and (10) cumulative error. The underlying basis for all of these grounds was a n affidavit, signed by Bondy’s wife Dorothy almost one year after the trial, in wh ich she claims remorse for her testimony and alleges that child welfare officials, the police, and the prosecution conspired to manipulate and coerce her and the vict im to testify falsely against her husband. According to Bondy, he requested that his counsel supplement the record on appeal with the affidavit, but counsel de clined.1 There is confusion in the record regarding Bondy’s ground number two,

which claims ineffective assistance of counsel pert aining to the exclusion from evidence of a letter written by Bondy’s wife while Bondy was in jail awaiting trial. The state district court addressed ground t wo solely as a claim of ineffective assistance of appellate counsel for fai lure to raise the issue on appeal, even though Bondy also made passing reference in hi s brief to ineffective assistance of trial counsel for failure to aggressi vely pursue the issue and to move to admit the letter into evidence. Likewise, the O CCA condensed grounds two and nine into a single claim of ineffective assista nce of appellate counsel and only addressed that issue, finding all of Bondy’s remain ing claims were defaulted. The magistrate judge thus properly treated the issue of ineffective assistance of trial counsel as one that the state court had deemed proc edurally barred. -4- The state district court found Bondy was procedural ly barred from arguing all claims not raised on direct appeal, except his claim of ineffective assistance of appellate counsel. 1 On the ineffective assistance claim, the court fo und Bondy failed to establish that he received constitutional ly ineffective assistance of appellate counsel under Strickland v. Washington , 466 U.S. 668 (1984). The OCCA affirmed the district court’s denial of post-c onviction relief on November 4, 1999. Bondy then petitioned in federal court for a writ o f habeas corpus pursuant to 28 U.S.C. § 2254, where he raised the same ten g rounds as those in his state post-conviction application. The magistrate judge refused to review those claims that were procedurally defaulted, and further found that the state court’s procedural bar of any claim of ineffective assistan ce of trial counsel was appropriate under relevant federal precedent. The magistrate judge then examined-5-

at length Bondy’s ineffective assistance of appella te counsel claim and concluded that Bondy failed to show his counsel acted unreaso nably or that counsel’s performance prejudiced his case. Finally, construi ng Bondy’s petition liberally, the magistrate judge found Bondy failed to demonstr ate either his actual innocence or that a fundamental miscarriage of just ice resulted from the court’s refusal to review his procedurally defaulted claims . The district court adopted the magistrate judge’s report and recommendation in its entirety and denied Bondy’s habeas petition on April 20, 2001. Bondy now appeals and requests a COA from this court based on the same ten grounds argued in his state and federal petitio ns. He also raises two new issues. The first, raised but not argued before th e district court, is that the state and his appellate counsel unconstitutionally denied Bondy access to his trial court records and transcripts at public expense. The sec ond is that the district court erred in denying Bondy an evidentiary hearing to fu rther investigate the particular issues he raises. In a habeas corpus proceeding under 28 U.S.C. § 225 4, a COA will be granted only if the applicant has made a “substanti al showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Th at demonstration includes “showing that reasonable jurists could debate wheth er (or, for that matter, agree that) the petition should have been resolved in a d ifferent manner or that the-6-

issues presented were ‘adequate to deserve encourag ement to proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 (1983)). When the district court has rejected a petitioner’s constitutional claims on the merits, we grant a COA only when the petitioner “demonstrate[s] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. When a district court denies habeas relief on procedural grounds without reachin g the constitutional claims, we grant a COA only if the petitioner shows “that j urists 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 deba table whether the district court was correct in its procedural ruling.” Id.
II We review de novo whether a petitioner’s claims are procedurally barr ed.
See Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). As a general r ule, federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is b arred “unless the [petitioner] can demonstrate cause for the default and actual pr ejudice as a result of the alleged violation of federal law, or demonstrate th at failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). “A state procedural ground i s independent if it relies on2 The magistrate judge found Dorothy Bondy’s statemen ts in her post-trial

affidavit unconvincing given the clarity and consis tency of her trial testimony for the prosecution and the zealous cross-examination o f all of the state’s witnesses by defense counsel. In addition to Dorothy Bondy, several other people testified against petitioner at trial, including the victim, the victim’s aunt and uncle, the victim’s grandmother, the victim’s eight-year-old c ousin, the investigating police (continued...) -7- state law, rather than federal law, as the basis for the decision.” English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). To be adequa te, “a state rule of procedural default must be applied evenhandedly in the vast majority of cases.” Id. Bondy’s state post-conviction claims numbered one, three, four, five, six, seven, eight, and ten were all barred procedurally under Oklahoma law because of his failure to raise the issues first on direct app eal. The procedural bar to those issues was an independent state ground because “it was the exclusive basis for the state court’s holding” on those claims. Maes v. Thomas , 46 F.3d 979, 985 (10th Cir. 1995). Because Oklahoma regularly applies this law, the district court correctly found the rule to be an adequate ground f or the appellate court’s decision. See Odum v. Boone , 62 F.3d 327, 331 (10th Cir. 1995); see also Brecheen v. Reynolds , 41 F.3d 1343, 1349 n.4 (10th Cir. 1994). Furthermo re, after reviewing the record in this case, we agree w ith the district court’s conclusion that the allegations of perjury and coer cion stated by Bondy in his court papers and by his wife in her affidavit are n ot sufficient to overcome the contrary evidence of Bondy’s guilt presented at trial. 2 Therefore, we also2 (...continued)

officer, a sex crimes detective, and a medical expe rt. -8- conclude that Bondy has not demonstrated either act ual prejudice as a result of the alleged violations of federal law or that the f ailure to consider his claims resulted in a fundamental miscarriage of justice. We find no merit to Bondy’s claim that his inability to obtain records and transcripts at public expense was either “cause and prejudice” or a “fundamental miscarriage of justice” entitling him to avoid Okla homa’s procedural bar. In his brief on appeal, Bondy cites only to a portion of h is brief in the district court where he alleged that, after his conviction was aff irmed, he made several failed attempts to obtain copies of trial transcripts and court records at public expense. He claims those attempts failed because he could no t overcome “procedural blockades meant to keep indigent litigants from ade quately developing arguments on appeal.” (Appellant’s Br. at 4.) This perfunct ory allegation provides us with Bondy’s only claim of error on the matter. The rec ord includes nothing of substance that allows us to review Bondy’s assertio ns, and we will not craft an argument for him. The record does show that Oklaho ma law provides a procedure for indigent defendants to obtain transcripts, but Bondy has failed to demonstrate how that procedure, or any deficiency in that proce dure, has affected his claims.-9-

Without more, we conclude Bondy has not shown preju dice or a miscarriage of justice that overcomes Oklahoma’s procedural bar to his claims.
III Claims of ineffective assistance of trial counsel m ay also be defaulted at the state level so long as the procedural bar for t he review of those claims “adequately protects a criminal defendant’s ability to vindicate his or her constitutional right to the effective assistance of counsel.” English , 146 F.3d at 1261. Because of the fundamental importance of the Sixth Amendment right to counsel, we have stated that, to be adequate, a sta te procedural bar to federal habeas review of ineffective assistance of trial co unsel claims must comply with the following imperatives: “(1) allowing petitione r an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel’s performance and (2) providing a procedura l mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.” Id. at 1263. In English we held that Oklahoma’s procedural default rule may bar claims of ineffective assistan ce of trial counsel in those cases where “trial and appellate counsel differ, and the ineffectiveness claim can be resolved upon the trial record alone.” Id. at 1264. In the instant case, there is no question that Bond y’s trial counsel and appellate counsel differed. Further, the magistrat e judge found that trial counsel3 In his response to the magistrate judge’s report an d recommendation,

Bondy argued that the matter could not be resolved on the basis of the record alone, and therefore he requested an evidentiary he aring to flesh out and prove his allegations. However, such a hearing would contrav ene the clear language of 28 U.S.C. § 2254(e)(2), which allows evidentiary heari ngs only after the applicant has demonstrated he has met certain tightly prescri bed exceptions excusing his failure to develop the factual basis of his claim i n state court. Bondy has not made that showing. Further, we disagree with Bondy ’s claim that the issue of ineffective assistance of trial counsel could not h ave been resolved on the trial court record, as the existence of the letter and tr ial counsel’s questioning as to its contents were contained in that record. To the ext ent Bondy requests an evidentiary hearing to demonstrate actual innocence as a reason to avoid the procedural bar, we conclude that Bondy’s allegation s, based entirely upon his wife’s affidavit, do not present “evidence of innoc ence so strong that a court cannot have confidence in the outcome of the trial.” Schlup v. Delo , 513 U.S. 298, 316 (1995). -10- declined to offer a potentially damaging letter fro m Bondy’s wife into evidence, choosing instead to strategically cross-examine her only on the letter’s contents that were favorable to Bondy. These facts and Doro thy Bondy’s testimony were all part of the trial record. We therefore agree w ith the magistrate judge’s report and recommendation, adopted by the district court, that Bondy was able to adequately develop any factual basis for his claim surrounding the letter, and that his appellate counsel could have pursued this claim on direct appeal. 3 Thus, the state procedural bar to this claim was adequate. M oreover, our review of the record convinces us that trial counsel’s decision w as not objectively deficient or prejudicial to Bondy’s case, and also that Bondy ha s not demonstrated that the failure to consider this claim resulted in a miscar riage of justice. Therefore, we-11-

conclude Bondy has not overcome Oklahoma’s procedur al bar to his allegation of ineffective assistance of trial counsel.
IV Because the state court reviewed Bondy’s claims of ineffective assistance of appellate counsel on the merits, the federal dis trict court was required to deny the claims unless they (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Fe deral Law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Hale v. Gibson , 227 F.3d 1298, 1309 (10th Cir. 2000), cert. denied , 121 S. Ct. 2608 (2001). This Court presumes a st ate court’s factual findings to be correct unless the petitione r is able to rebut this presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). A state court decision is contrary to established fed eral law under § 2254(d)(1) “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 d ecides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000). A state court decision i s an unreasonable application of federal law under § 2254(d)(2) “if t he state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but-12-

unreasonably applies that principle to the facts of the prisoner’s case.” Id. The reasonableness of the state court’s application of federal law is evaluated objectively. See id. at 409–10. Bondy’s claim of ineffective assistance of appellat e counsel is based on his lawyer’s decision not to raise claims on direct app eal relating to allegations of “prosecutorial misconduct, perjured testimony, and contaminated testimony.” (Appellant’s Br. at 13.) As noted above, these iss ues first surfaced after Bondy secured an affidavit from his wife, in which she re canted part of her testimony and questioned the credibility of many of the witne sses against Bondy. After obtaining the affidavit, Bondy apparently filed a m otion for a new trial with the state district court and also requested that his ap pellate counsel supplement the record on direct appeal. Counsel advised him that his motion for new trial would likely be denied because it was not based on suffic iently meritorious newly discovered evidence, and she declined to supplement the record because the appeal had been perfected over four months before t he affidavit had been signed. Both the OCCA’s order and the magistrate judge’s report and recommendation provide analysis of Bondy’s ineffect ive assistance claim under the correct legal principles as articulated by the Supreme Court in Strickland

. Our review of the entire record in this case also c onvinces us that the decision of Bondy’s appellate counsel to base the appeal on tho se issues she believed had-13-

merit—and to forgo raising those issues she felt we re unsupported by the record—was objectively reasonable. Moreover, our r eview of the unsubstantiated allegations in Dorothy Bondy’s affidavit persuades us that even if its preclusion on direct appeal constituted professional error, th at error would have had no effect on the outcome of that appeal.
V Accordingly, Mr. Bondy’s motion to proceed in formapauperis is
GRANTED . His application for a COA is DENIED . The appeal is
DISMISSED and his motion for judgment is DENIED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge