* This order and judgment is not binding precedent, e xcept under the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

### MAR 31 1997 

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

JIM LUMAN,

Petitioner-Appellant,

v. RON CHAMPION, in his official capacity as Warden; and THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 95-5275 (D.C. No. 93-C-297-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.
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. In his amended petition for writs of habeas corpus, petitioner Jim Luman sought vacation of two convictions stemming from tw o separate cases in1 Respondents request that we apply the revised versi on of 28 U.S.C.

§ 2254(d) enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. AEDPA w as signed into law on April 24, 1996. Petitioner filed his petition on April 6 , 1993, and his notice of appeal on December 18, 1995. We have previously ruled that under these circumstances, the revised version of § 2254(d) does not apply. S ee Edens v. Hannigan , 87 F.3d 1109, 1112 n.1 (10th Cir. 1996). -2- Oklahoma state court. The district court granted r elief on one of the convictions, attempted grand larceny after two or more felony co nvictions (case No. CF-90-1277), on the basis that petitioner did not knowingly and intelligently waive his right to counsel. Respondents have not appealed that determination. The district court denied relief on the other convi ction, knowingly concealing stolen property after two or more felony conviction s (case No. CF-89-1006), and petitioner appeals pro se. We have jurisdiction un der 28 U.S.C. § 1291 and review the district court's factual findings for cl ear error and its legal conclusions de novo, Matthews v. Price , 83 F.3d 328, 331 (10th Cir.1996). 1 We affirm. The general facts leading to petitioner’s convictio n in case No. CF-89-1006 are not in dispute. On December 5, 1988, ninety-fi ve boxes of meat were stolen from the Monfort Food Distributing Company in Tulsa . The next day, petitioner rented a refrigerated trailer in Tulsa. Later in D ecember, petitioner traded boxes of meat, which turned out to be some of the meat st olen from Monfort, to Hugh Caraway and Wendell West in return for various item s. West had picked up some of the boxes of meat from the refrigerated trailer petitioner had rented.2 On appeal, petitioner claims that his counsel was a lso ineffective during

preliminary proceedings. However, petitioner did n ot raise this argument in the district court, and we will not consider it on appe al. We reject his contention that his brief passing mention of his counsel’s actions during preliminary proceedings (continued...) -3- Investigation of the stolen meat focused on petitio ner after the butcher to whom Caraway took his boxes of meat became suspicious th at it was stolen and contacted Monfort. There was no direct evidence th at petitioner knew the meat was stolen, nor was there any evidence indicating w ho stole the meat from Monfort. In March 1989, petitioner was charged with knowingl y concealing stolen property (the three boxes of meat he had traded to Caraway) after two or more felony convictions. A jury found him guilty, and h e was sentenced to thirty years’ imprisonment. The conviction was affirmed on direc t appeal in an unpublished decision. In post-conviction proceedings, which in cluded an evidentiary hearing on petitioner’s claim of ineffective assistance of trial counsel, state courts denied relief. Petitioner then brought this action seekin g habeas relief. On appeal, he contends that (1) he received ineffective assistanc e of counsel because his counsel failed to adequately investigate his case and prepa re for trial and because counsel failed to object to testimony by his probation offi cer; (2) the trial court improperly communicated ex parte with a juror; and (3) he was denied his right to cross-examine a witness. 22 (...continued)

in his amended petition’s statement of facts--witho ut any argument that these actions were ineffective--is sufficient to preserve the issue for review. See Rademacher v. Colorado Ass’n of Soil Conservation D ists. Medical Benefits Plan , 11 F.3d 1567, 1571-72 (10th Cir. 1993). -4- To prevail on a claim of ineffective assistance of counsel, petitioner must prove both that his counsel’s performance was defic ient, that is, fell below an objective standard of reasonableness, and that this deficiency prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687-88 (1984). “Reasonableness is evaluated under prevailing profe ssional norms and is considered in light of all the circumstances.” Ede ns , 87 F.3d at 1114. Based on evidence that counsel failed to meet with any witne sses or petitioner’s investigator before trial, the district court foundthat counsel completely abdicated his duty to investigate and that his performance wa s thus deficient in this regard. However, the court concluded that petitioner had no t shown that he was prejudiced by the failure to investigate. We agree with the district court that petitioner ha s not demonstrated that he was prejudiced by his counsel’s failure to investig ate. When an ineffective assistance claim centers on a failure to investigat e and elicit testimony from witnesses, the petitioner must “demonstrate, with s ome precision, the content of the testimony they would have given at trial.” Law rence v. Armontrout , 900 F.2d 127, 130 (8th Cir. 1990) (quotation omitted). Thou gh many of the defense-5-

witnesses who testified at petitioner’s trial also testified at the post-conviction evidentiary hearing or submitted affidavits indicat ing that counsel did not interview them prior to trial, petitioner does not identify what testimony they could have given had counsel’s performance not beendeficient. Instead, petitioner contends only that “important potential testimony would have been discovered” had his counsel interviewed witnesses b efore trial, Appellant’s Br. at 11, and that “it is impossible to second guess justwhat [witness Michaelberg] could have testified to had [counsel] fulfilled his duty to m ake reasonable investigations,” id. at 10. By failing to show what testimony the witnesses cou ld have given, petitioner cannot show that there is a reasonable p robability that but for counsel’s deficient performance, the result of the trial woul d have been different. See Strickland , 466 U.S. at 694. Moreover, we reject petitioner’ s attempt to avoid his burden of showing prejudice by contending “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversary test ing.” United States v. Cronic , 466 U.S. 648, 659 (1984). Though counsel’s perform ance in failing to investigate was deficient, it was not so deficient that prejudi ce can be presumed. See Houchin
v. Zavaras , No. 96-1187, 1997 WL 81157, at *6 (10th Cir. Feb. 27, 1997). Petitioner also claims his counsel was ineffective for failing to assert the proper objection to testimony by his federal probat ion officer, Rod Baker.-6-

Petitioner was on probation at the time he traded m eat to West and Caraway. Though Baker was not allowed to state that he was aprobation officer, he was allowed to testify that petitioner was obligated to report to him specific details of his business activities including income, and that he had reported trading activities in the past. Baker then testified that during the relevant period, petitioner did not report any trades of meat. The prosecutor argued in closing that the failure to report the meat trades when he was o bligated to do so was evidence petitioner knew the meat was stolen. Petitioner co ntends that his counsel was ineffective for failing to object to this testimonyon the basis that it was an improper comment on his Fifth Amendment right to re main silent. He also contends counsel was ineffective for failing to cro ss-examine Baker. In certain circumstances, counsel’s failure to asse rt a proper objection may constitute deficient performance. See United States v. Kissick , 69 F.3d 1048, 1056 (10th Cir. 1995) (finding counsel’s performanc e deficient for failure to raise “dead-bang winner” objection in sentencing hearing) ; Mason v. Scully , 16 F.3d 38, 44 (2d Cir. 1994); Chatom v. White , 858 F.2d 1479, 1485-86 (11th Cir. 1988). The initial question here is whether petitioner’s F ifth Amendment objection would have been proper, that is, would it likely have been successful and sustained. Cf. Banks v. Reynolds , 54 F.3d 1508, 1515 (10th Cir. 1995) (failure of appellate counsel to raise meritless issue not defi cient performance); United-7-

States v. Dixon , 1 F.3d 1080, 1083 n.5 (10th Cir. 1993) (same; als o noting that counsel’s performance not necessarily deficient “wh enever he fails to raise a claim which is ultimately determined to have had me rit”). Petitioner essentially contends that he had a FifthAmendment right not to incriminate himself by telling Baker he was trading stolen property. See Minnesota v. Murphy , 465 U.S. 420, 426-28 (1984). Therefore, he conti nues, Baker’s testimony was an unconstitutional comment o n his prearrest silence. The prosecution did not use Baker’s testimony to impeac h petitioner, as petitioner did not testify. See Jenkins v. Anderson , 447 U.S. 231, 238 (1980) (prearrest, pre-Mirandasilence may be used to impeach defendant’s testimo ny). Instead, the prosecution used petitioner’s silence as evidence o f guilt. The Supreme Court has not yet ruled on whether pre-Mirandaor prearrest silence as substantive evidence is protected by the Fifth Amendment, see id. at 236 n.2 (reserving issue), and the circuits are split on this issue, see United States v. Thompson , 82 F.3d 849, 855 (9th Cir. 1996) (collecting cases). We must assess counsel’s performance by what he rea sonably should have known, including the state of the law, at the time of trial. See Coleman v. Saffle , 869 F.2d 1377, 1394 n.15 (10th Cir. 1989); Elledge v. Dugger , 823 F.2d 1439, 1442-43, modified on reh’g , 833 F.2d 250 (11th Cir. 1987). Petitioner was tr ied in May 1990. At that time, it was not clear whethe r Oklahoma courts would allow-8-

admission of evidence of prearrest silence. Compar e Farley v. State , 717 P.2d 111, 112-13 (Okla. Crim. App. 1986), withRoyal v. State , 761 P.2d 497, 500-01 (Okla. Crim. App. 1988). In this circuit, evidence of pre-Mirandasilence was admissible as evidence of guilt. See United States v. Harrold , 796 F.2d 1275, 1278-79 (10th Cir. 1986) (approving admission of de fendant’s pre-Miranda invocation of right to remain silent in meeting with IRS officers); but see United
States v. Sasser , 974 F.2d 1544, 1558-59 (10th Cir. 1992) (finding evidence of prearrest failure to comply with subpoena, complian ce with which may have compelled defendant to incriminate himself, inadmis sible under the Fifth Amendment); United States v. Burson , 952 F.2d 1196, 1200-01 (10th Cir. 1991) (finding prearrest silence inadmissible as evidence of guilt). Because the success of a Fifth Amendment objection in this case is ques tionable, we cannot say that petitioner’s counsel’s failure to assert the object ion amounted to deficient performance. See Lilly v. Gilmore , 988 F.2d 783, 786 (7th Cir. 1993) (performance not deficient where counsel fails to f orecast changes or advances in the law). We also agree with the district court that counsel’ s failure to cross-examine Baker was not deficient performance. Petitioner co ntends that counsel could have elicited testimony that his trades did not generate income and that he therefore had no obligation to report the trades to Baker. P etitioner is speculating what3 Petitioner was scheduled to be a witness in the dru g trafficking trial of Jose

Abello-Silva. We noted in Abello-Silva’s appeal fr om his convictions that there had been pretrial publicity in that case. See United States v. Abello-Silva , 948 F.2d 1168, 1177-78 (10th Cir. 1991). -9- cross-examination could have revealed, and we do no t agree that trades necessarily do not generate income. Moreover, cros s-examination could have emphasized Baker’s testimony. We do not find couns el’s failure to cross-examine objectively unreasonable. Petitioner next contends that the trial court erredby communicating ex parte with a juror regarding the juror’s possible p rejudice or bias. After the prosecution had completed presentation of its case on the first day of trial, a juror sent word to the judge that she had seen news accou nts regarding petitioner’s involvement in a different trial then proceeding in federal court in Tulsa. 3 The judge met the juror in chambers, with a court reporter but without counsel or petitioner in attendance, to find out what she had heard or seen. She said she had seen what appeared to be a sketch of petitioner on the television news the previous evening, but did not hear what was being s aid about him and paid no more attention. Then during a break in proceedings that morning, she was reading a newspaper article about the Abello-Silva trial and read that petitioner was going to be a witness in that trial. At that p oint she stopped reading the article and reported the incident to the bailiff. She told the judge that she did not4 According to petitioner, the newspaper article she read indicated that he

was a felon who had spent time in jail with an Abel lo-Silva coconspirator. Petitioner contends that the juror may also have re ad an article in the previous day’s paper providing more details of his criminal history, but there is no evidence that she read that article. -10- read any “details” about petitioner’s being a witne ss. 4She also stated that during a supplemental voir dire that morning, when petitio ner’s counsel asked whether any jurors had seen or heard anything in the media about petitioner, it did not register that she had seen the sketch of petitionerthe previous evening. The juror said she had not mentioned this incident to the oth er jurors and told the judge that she thought she could continue as a juror and decid e the case on the facts. The judge then met with the counsel and “discussed with both attorneys the nature of the discussion that I’ve had with the jur or,” Trial Tr., Vol. II at 136, though this discussion was apparently not recorded and transcribed. The judge said that he thought the juror could continue to si t and allowed petitioner’s counsel to question the juror. Counsel declined, and the case proceeded. Petitioner contends that the judge’s ex parte commu nication with the juror violated his Sixth Amendment right to an “open and public trial” and apparently his right to be present during all proceedings. He also contends that this type of error is not subject to harmless error analysis, orif it is, that respondents have not met their burden of showing harmlessness beyond a r easonable doubt as required by Chapman v. California , 386 U.S. 18 (1967).-11-

Contrary to petitioner’s contention, any error thatmay have occurred here is a trial error that is subject to harmless error analysis. See Rushen v. Spain , 464 U.S. 114, 117-20 (1983); Yarborough v. Keane , 101 F.3d 894, 896-98 (2d Cir. 1996), petition for cert. filed , (U.S. March 10, 1997) (No. 96-8189); Hegler v. Borg , 50 F.3d 1472, 1476-77 (9th Cir.), cert. denied , 116 S. Ct. 675 (1995). Moreover, because this issue arises on habeas, we apply not Chapman ’s test for harmlessness, but instead the harmlessness test of Brecht v. Abrahamson , 507 U.S. 619 (1993). See Yarborough , 101 F.3d at 899; Hegler , 50 F.3d at 1477-78. Under Brecht , a habeas petitioner challenging a trial error is entitled to relief only if the error had a “substantial and injurious effec t or influence in determining the jury’s verdict.” Brecht , 507 U.S. at 623 (quoting Kotteakos v. United Stat es , 328 U.S. 750, 776 (1946)). On review of the record, we agree with the districtcourt that the judge’s ex parte communication with the juror was harmless. T he juror stated that she learned that petitioner was a witness in the other trial, but not any facts about petitioner’s criminal past. Immediately after tal king with the juror, the judge informed counsel of the discussion and allowed peti tioner’s counsel to question her, an opportunity he declined. In an affidavit s ubmitted after trial, petitioner’s counsel stated that the trial judge only informed h im that the juror had seen the newspaper article, not that she had also seen his p icture on the television news,-12-

and that had he known this latter fact, he would have cross-examined her. Additionally, petitioner appears to contend that hi s counsel was ineffective for failing to examine her in any event. Though it may have been better practice for the judge to have allowed counsel to read a transcr ipt of his meeting with the juror and to have recorded his discussion with coun sel about that meeting, it is clear he informed counsel of the substance of his m eeting. Moreover, it was objectively reasonable for counsel not to have cros s-examined the juror, an action that could well have been counterproductive. See United States v. Santiago , 977 F.2d 517, 522-23 (10th Cir. 1992). Finally, petitioner contends that the trial court v iolated his right to call and/or confront witnesses when it refused to allow a witness to testify because of a violation of the rule of sequestration. The witn ess, Wendell West, had testified for the prosecution and had been cross-examined by petitioner’s counsel. At the close of the prosecution’s case, the prosecutor inv oked the rule. After trial recessed for the day, petitioner telephoned West an d asked him to check his records on several points covered by his testimony. He also told West that Alan Elias would be called as a witness the next day andtold him what Elias’s testimony would be. When counsel called West as a witness the next day, the prosecutor objected on the basis that the rule had been violated. After West was5 We note that in his brief, petitioner stated that t his contact occurred in “the

latter part of March,” Appellant’s Br. at 33, and t hat in his offer of proof at trial, counsel stated that this contact occurred in April or early May, 1989, Trial Tr. Vol. II at 179. -13- questioned about his conversation with petitioner, the court determined that the rule had been violated and barred West from testify ing. We agree with the district court that even if the t rial court committed some type of constitutional error--and we by no means intend to imply that it did--any error was patently harmless. West testified that h e first discussed a meat trade with petitioner around December 16 to 19, 1988, andon cross-examination said it could have been on December 21 or 22. His “clarifi ed” testimony would have been that this discussion occurred around December 21 to 23. Petitioner fails to explain, nor do we see, any significance to this cl arification. West also testified that petitioner contacted him in May or June 1989 t o tell him that the meat may have been stolen. The “clarified” testimony would have been that he “was possiblycontacted by [petitioner] within the first two wee ks of March, 1989.” Exhibits in Support of Petitioner’s Br., Ex. P at 3 (emphasis added). 5 The information charging petitioner with the offense wa s filed in early March 1989. Thus, at most the inference from this “clarified” t estimony could have been that petitioner possibly warned West about the meat bein g stolen a few days prior to his being charged. Had this testimony been allowed , the prosecutor certainly-14-

would have brought out on cross-examination that We st did not recall this testimony until after petitioner contacted him. In light of his earlier testimony in which he twice stated that the event occurred in May or June, the “clarified” testimony would not have had much probative force, and we cannot say that its exclusion had a “substantial and injurious effect” on the outcome of the trial. See Brecht , 507 U.S. at 623. The judgment of the district court is AFFIRMED. Pe titioner’s motion for appointment of counsel is DENIED. The mandate shal l issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge