United States 10th Circuit Court of Appeals Reports


WEBSTER v. ATTORNEY GENERAL, 06-6207 (10th Cir. 1-12-2007)
06-6207, (D.C. No. CIV-04-1663-F) (W . D. Okla.) United
States Court of Appeals, Tenth Circuit. January 12, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the

[fn*] This order is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

Mary Beck Briscoe, Circuit Judge.

Joseph Lavon Webster, a state prisoner appearing pro se,
seeks to appeal the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus.
The matter is before this court on Webster’s request for a
certificate of appealability (“COA”). Our jurisdiction
arises under 28 U.S.C. §§ 1291 and 2253(a),
and, as we determine that Webster has not made a
“substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 483-84 (2000), we deny a COA and dismiss the
matter. Webster was convicted by an Oklahoma jury for
trafficking in illegal drugs with a cocaine base and
thereafter sentenced to forty-five years of imprisonment.
He filed a direct appeal of his conviction, which the
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed by
summary opinion. Webster subsequently sought
post-conviction relief which was denied by the state
district court. He sought review of the state district
court’s denial of his request for post-conviction relief,
but the OCCA dismissed the appeal as untimely and his
application to file an appeal out of time was denied by the
state district court. Webster thereafter filed a petition
under 28 U.S.C. § 2254 in federal court arguing (1)
the trial court erred in failing to suppress contraband
evidence, (2) a Brady violation, and (3) ineffective
assistance of counsel. Adopting the thorough report and
recommendation of the magistrate judge, the federal
district court denied this petition.

Webster has filed a notice of appeal from the denial of
his § 2254 petition, a brief in support, and an
application for a COA. A COA is a jurisdictional
prerequisite. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). We construe Webster’s appellate brief in support of
his notice of appeal as additional argument in support of
his application for a COA. This court can issue a COA only
“if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327. This determination “requires an
overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336. Webster is not
required to prove the merits of his case, but he must
nonetheless demonstrate “something more than the absence of
frivolity” or the mere existence of good faith on his part.
Id. at 338 (internal quotation marks omitted). Under
§ 2254, we may grant a COA on a claim that was
adjudicated on the merits in state court only if the state
court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

Having undertaken a review of Webster’s application for a
COA and appellate filings, the district court’s order, and
the entire record on appeal pursuant to the framework set
out by the Supreme Court in Miller-El, we conclude Webster
is not entitled to a COA. For the following reasons, the
district court’s resolution of Webster’s § 2254
motion is not reasonably subject to debate and the issues
he seeks to raise on appeal are not adequate to deserve
further proceedings.

Webster first argues that his conviction rests upon
evidence obtained as the result of an unconstitutional
search and seizure. The district court concluded that the
Supreme Court’s decision in Stone v. Powell, 428 U.S. 465
(1976) barred Webster’s claim. In Stone, the Court held
that, “where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be
granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” Id. at 481-82. Such an
opportunity may occur at trial or on direct appeal. Stone,
428 U.S. at 494, n. 37. We would review de novo whether a
petitioner had an opportunity for full and fair litigation
of his Fourth Amendment claim. Smallwood v. Gibson, 191
F.3d 1257, 1265 (10th Cir. 1999).

At trial, Webster did not seek the suppression of any
evidence. On direct appeal, he raised the failure of the
trial court to suppress evidence in violation of the Fourth
Amendment and of Article II, Section 30 of Oklahoma’s
Constitution. The OCCA rejected Webster’s claim for two
reasons. First, it held that the evidence in question had
been abandoned. Second, after thoroughly considering
Webster’s allegation in light of the record, the OCCA also
determined that the stop in question was a proper
investigatory stop, based upon a reasonable suspicion of
illegal activity.

In denying his § 2254 petition, the district court
determined that Webster had an opportunity to fully and
fairly litigate these claims in state court. Specifically,
the district court pointed to Oklahoma law, as well as
United State Supreme Court precedent, for the proposition
that “[w]hen one voluntarily abandons property, he has no
standing to complain of its search and seizure.” Menefee v.
State, 640 P.2d 1381, 1385 (Okla.Crim.App. 1982) (citing
Abel v. United States, 362 U.S. 217, 241 (1960)).
Alternatively, the district court noted that the OCCA had
thoroughly considered the entire record and had cited the
applicable case law in determining that the conduct of law
enforcement was reasonable and lawful. See, e.g., Terry v.
Ohio, 392 U.S. 1, 21-22 (1968) (holding that an
investigatory stop may be justified by reasonable suspicion
that falls short of probable cause); Adams v. Williams, 407
U.S. 143, 147-48 (1972) (holding that the fact that an
investigatory stop took place in a “high crime area” is
pertinent to a Terry analysis); Illinois v. Wardlow, 528
U.S. 119, 124 (2000) (holding that unprovoked flight is
“not necessarily indicative of wrongdoing, but it is
certainly suggestive of such”). We agree with the district
court that Webster had a full and fair opportunity to
present his Fourth Amendment claim in state court
proceedings. Thus, Webster is not entitled to a CO A as to
this claim.

Webster characterizes his next request for relief as a
“Brady violation” wherein he essentially argues that
certain information was improperly withheld from the jury
at trial. Webster did not raise this issue on direct
appeal. Following the affirmance of his conviction on
direct appeal, he filed a request for post-conviction
relief in the state district court, which was denied.
Thereafter, Webster appealed to the OCCA the state district
court’s denial of his request for post-conviction relief.
However, the OCCA denied Webster’s appeal as untimely under
Rule 5.2(C) of the Oklahoma Rules of the Court of Criminal
Appeals, because he failed to include with his appeal
either the required filing fee or a completed affidavit to
proceed in forma pauperis. See Okla. Stat. tit. 22, Ch 18,
App. Rule 5.2(C)(2) (“If the post conviction appeal arises
from a . . . regular felony conviction, [it] must be filed
within thirty (30) days from the date [of] the final order
of the District Court . . . .”); see also Okla. Stat. tit.
22, Ch 18, App. Rule 1.11 (“A pleading shall not be
considered filed . . . until such time as the filing fee is
paid or an `Affidavit in Forma Pauperis’ is properly
filed.”). In that denial, the OCCA advised Webster that
insofar as he sought to pursue his appeal further, he was
required to apply to the state district court for a
post-conviction appeal out of time. See Okla. Stat. tit.
22, Ch 18, App. Rule 2.1(E) (“A petitioner’s right to
appeal [out of time] is dependent upon the ability to prove
he/she was denied an appeal through no fault of his/her
own.”). Webster filed such an application, arguing that he
misunderstood when his thirty days to appeal began to run,
that prison procedures hindered his timely compliance, and
that the mail system generally failed. Nonetheless, the
state district court rejected these arguments and denied
Webster permission to file an untimely appeal.

Under the doctrine of procedural default, a federal court
undertaking habeas review will not review a claim that has
been defaulted in state court on an independent and
adequate state procedural ground unless the petitioner
demonstrates cause for default and actual prejudice, or,
alternatively, demonstrates a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991).
Here, in denying Webster’s § 2254 petition, the
district court correctly concluded that Webster’s failure
to seek timely appellate review in state court constituted
a procedural default of his Brady claim. Duvall v.
Reyonolds, 139 F.3d 768, 797 (10th Cir. 1998) (determining
that Rule 5.2(C) is an independent and adequate state
ground sufficient to bar habeas relief, absent a showing of
cause and prejudice or, alternatively, a miscarriage of
justice). Applying the cause-and-prejudice test for
overcoming procedural default, and recognizing that a state
court’s factual determination that an appeal was denied due
to a petitioner’s own fault is presumed to be correct, see
28 U.S.C. 2254(e)(1), the district court correctly
concluded Webster had not demonstrated cause to overcome
his procedural default. We too conclude that Webster failed
to demonstrate cause and prejudice for his procedural
default, or that failure to consider his claim will result
in a fundamental miscarriage of justice. Accordingly, we
conclude that Webster is not entitled to a COA on this
ground because his claim is barred.

Webster’s last argument is two-fold. Webster primarily
argues that his trial counsel was ineffective because his
counsel failed to move to suppress contraband evidence. As
noted above, Webster raised this issue on direct appeal and
the OCCA determined, in accord with applicable Supreme
Court and Oklahoma precedent, that the evidence at issue
had been abandoned and that the conduct of law enforcement
was reasonable and lawful. In that same order, the OCCA
held that there had been no ineffective assistance of
counsel. In denying Webster’s § 2254 petition, the
district court determined that the OCCA reasonably applied
Strickland v. Washington, 466 U.S. 668 (1984). We agree.
Under the two-part test established by the Court in
Strickland v. Washington, 466 U.S. 668 (1984), Webster must
prove that “counsel’s representation fell below an
objective standard of reasonableness” and that “any
deficiencies in counsel’s performance [were] prejudicial to
the defense.” Id. at 688, 692. We examine such claims with
a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id.
at 689. In applying the Strickland standard, “we look to
the merits of the omitted issue” in the context of
counsel’s overall defense strategy. Neill v. Gibson, 278
F.3d 1044, 1057 (10th Cir. 2001) (quoting Hooks v. Ward,
184 F.3d 1206, 1221 (10th Cir.1999)). Further deference is
credited to the OCCA under AEDPA, in that we grant relief
only if the OCCA unreasonably applied the Strickland
standard. 28 U.S.C. § 2254(d)(1). Here, Webster cites
no legal authority which would have supported his present
Fourth Amendment argument, or which would have led to the
suppression of evidence. As such, we too conclude that the
OCCA reasonably applied Strickland.

Next, Webster attempts to raise numerous additional claims
of ineffective assistance of counsel which he did not raise
on direct appeal. Specifically, Webster alleges various
instances of his trial counsel’s failure to conduct a
proper pre-trial investigation of his case. The record
before us is unclear as to whether Webster raised these
issues for the first time in his application for
post-conviction relief or whether he raised these issues
for the first time in his § 2254 petition.

In either event, we are prohibited from reviewing these
claims on the merits. Assuming these issues were first
raised in Webster’s motion for post-conviction relief, they
are procedurally barred for the same reasons Webster’s
Brady claim is barred, that is, because Webster failed to
seek timely appellate review by the OCCA, or to show cause
and prejudice or a miscarriage of justice sufficient to
overcome a procedural bar.[fn1] Assuming that Webster
failed to raise these additional allegations of ineffective
assistance of counsel in his state court application for
post-conviction relief, he has failed to exhaust his
ineffective assistance of counsel claims. Smallwood, 191
F.3d at 1267 (holding ineffective assistance of counsel
claim unexhausted where petitioner failed to properly raise
before the state court any of the bases upon which
ineffective assistance of counsel claim was based in
§ 2254 petition). However, dismissal without
prejudice for failure to exhaust state remedies is not
appropriate if the state court would now find the claims
procedurally barred on independent and adequate state
procedural grounds. Id. Such is the case here, because, if
Webster returned to state court to file a second application
for postconviction relief, he would be procedurally
barred. See id.; see also Okla. Stat. tit. 22, §
1086 (stating that a second post-conviction relief
application cannot be based on claims that were not raised
in an original, supplemental or amended application). Thus,
in either event, this claim is procedurally barred.

Finally, even if we were to address Webster’s additional
allegations of ineffective assistance on the merits, we
would conclude that they are facial, undeveloped and fail
to show objectively ineffective representation by his trial
counsel that resulted in prejudice. For all these reasons,
we conclude that Webster is not entitled to a COA on his
ineffective assistance of counsel claims.

In sum, Webster has failed to make a substantial showing
of the denial of a constitutional right. Accordingly, we
DENY Webster’s application for a COA and DISMISS this

[fn1] Our opinion in Breechen v. Reynolds, 41 F.3d 1343
(10th Cir. 1994) does not require a different result. In
Breechen, we held that an ineffective assistance of counsel
claim may be considered on federal habeas review despite a
state court finding that the claim was procedurally
defaulted because it had not been raised on direct appeal.
Id. at 1363-64. The decision reflected our concern that it
would be unfair to limit such a claim to direct appeal in
light of the need for additional factfinding and the need
to permit consultation with separate counsel to obtain an
objective assessment of trial counsel’s performance. See
Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th Cir. 1998).
Here, in contrast, we assume Webster’s claim was considered
on its merits in a state post-conviction proceeding, but
was defaulted because he failed to timely appeal that
decision. The concerns in Brecheen, thus, are not
implicated. See Moore, 153 F.3d at 1096-97 (holding an
ineffective assistance of counsel claim raised for the
first time in a successive post-conviction petition was
procedurally barred despite Breechen).