Mehdipour v. Parker

Full title: ALI MEHDIPOUR, Petitioner, v. LISA PARKER and RON WARD, Respondents

Court: United States District Court, W.D. Oklahoma

Date published: Jun 10, 2005

No. CIV-03-534-C (W.D. Okla. Jun. 10, 2005)

Opinion

No. CIV-03-534-C.

June 10, 2005.

REPORT AND RECOMMENDATION

BANA ROBERTS, Magistrate Judge

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. In his amended petition [Doc. No. 7], Petitioner is challenging his conviction of distribution of a controlled dangerous substance (methamphetamine) in the District Court of Oklahoma County, Case No. CF9-7-4702. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a response and the relevant state court record (Record) including the Original Record (O.R.) and the trial transcript (Tr.),² and Petitioner has filed a reply to the response.³ Thus, the matter is at issue. For the reasons set forth herein, it is recommended that the petition be denied.

2 Respondent has submitted a thorough compilation and review of the state court record in this matter.

3 Petitioner filed a reply to the response [Doc. No. 22] and then a supplemental reply [Doc. No. 23]. Thereafter, Petitioner filed a notice to the Court [Doc. No. 24] stating that he had corrected certain "clerical errors" in his "Corrected Supplemental Reply" (hereinafter "Corrected Reply") [Doc. No. 25].

Factual and Procedural Background

The facts supporting the state criminal conviction challenged herein by Petitioner are summarized as follows: On March 28, 1997, confidential informant Harvey Stafford, Jr., called Petitioner in order to arrange a drug transaction. The telephone conversation between Stafford and Petitioner was recorded and was made in the presence of Michael Snowden, an agent with the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBN) on Snowden's cell phone. Agent Snowden and Stafford then drove to 1915 Linwood in Oklahoma City, Petitioner's residence/place of business where they met with Petitioner. Agent Snowden purchased 13.1 grams, or approximately one-half ounce, of methamphetamine from Petitioner for $600.00. Agent Snowden was wearing a wire transmitter which recorded the conversation during the drug transaction. Four months later, on July 31, 1997, Agent Snowden arrested Petitioner without a warrant. At the time of Petitioner's arrest, Agent Snowden seized approximately $1,083.00 from Petitioner.

The history of Petitioner's subsequent court proceedings is far more complicated and defies brief description.⁴ On August 6, 1997, Petitioner was charged by information in the District Court of Oklahoma County, Case No. CF-97-4702, with distribution of a controlled dangerous substance (methamphetamine), a violation of Okla. Stat. tit. 63, § 2-401. Record, O.R. at 1-2, 665. The currency seized at the time of Petitioner's arrest was the subject of a civil forfeiture action, which action was dismissed with prejudice on August 14, 1998. Record, O.R. at 500. Petitioner was tried and convicted in April of 1999 and the jury recommended 30 years imprisonment and a fine of $20,000.⁵ On July 15, 1999, the court sentenced Petitioner in accordance with the jury's verdict.

4 During the pendency of his state criminal proceedings, Petitioner, appearing pro se, filed the following eight actions in this Court, most of which were civil rights actions against state judges, prosecutors, court personnel, and his own attorneys, challenging his criminal prosecution and conviction:
(1) On October 27, 1997, Mr. Mehdipour filed a habeas action challenging the arrest, search, and seizure by the OBN and the state court's alleged failure to provide a probable cause determination hearing on his state petition for writ of habeas corpus. Mehdipour v. Oklahoma County Sheriff, et al., Case No. CIV9-7-1712. Habeas relief was denied on February 18, 1998, and on appeal the Tenth Circuit dismissed the case as premature. Mehdipour v. Oklahoma County Sheriff, No. 98-6118, 1998 WL 614448 (10^th Cir. Sept. 4, 1998).
(2) and (3) Mr. Mehdipour filed two separate actions pursuant to 42 U.S.C. § 1983 naming Agent Snowden as a Defendant in each. The action in Mehdipour v. Snowden, et al, Case No. CIV-98-375-A, filed March 13, 1998, also named several district judges and prosecutors and sought an order to enjoin the ongoing Oklahoma state court criminal prosecution. The case was dismissed without prejudice on May 1, 1998, on abstention grounds and the Tenth Circuit affirmed. Mehdipour v. Snowden, No. 98-6204, 1998 WL 777397 (10^th Cir. Nov. 4, 1998). The second § 1983 complaint against Snowden, also naming the director of the OBN, was filed on December 4, 1998, Mehdipour v. Snowden, et al., Case No. CIV-98-1665-T, and this action was dismissed without prejudice on February 18, 1999, also on abstention grounds.
(4) On September 25, 1998, Mr. Mehdipour filed a. § 1983 complaint against defense attorney Stan Chatman, prosecutor Lisa Hammond. and Judge Charles Owens. Mehdipour v. Chatman, et al., Case No. CIV-98-1341-T. The docket shows this case was dismissed on February 18, 1999, on grounds of judicial and prosecutorial immunity and the failure to allege that his defense attorney was acting under color of state law. The docket further shows the case was dismissed on appeal.
(5) On April 6, 2000, Mr. Mehdipour filed a § 1983 action seeking declaratory relief as well as a temporary restraining order and preliminary injunction against the judges of the OCCA regarding the OCCA's disposition of various motions during his direct appeal. See Mehdipour v. Chapel, et al., Case No. CIV-00-695-C; see also Response, Ex. R (docket in CIV-00-695-C). On July 24, 2000, the action was dismissed based on the Rooker-Feldman doctrine and the Younger abstention doctrine, and on appeal. the Tenth Circuit affirmed. Response, Exs. S and T.
(6) On January 3, 2001, Mr. Mehdipour filed a § 1983 action naming Judge Susan Bragg, attorney Irven Box and Oklahoma County deputy court clerk Tommy Ferguson as defendants. Mehdipour v. Bragg, Case No. CIV-01-214-C. This action was dismissed on March 8, 2001, on grounds of absolute immunity and the failure to allege his defense attorney was acting under color of state law. On appeal, the Tenth Circuit affirmed. Mehdipour v. Bragg, No. 01-6209, 2001 WL 1580992 (10^th Cir. Dec. 12, 2001).
(7) On February 23, 2001, Mr. Mehdipour filed a second § 1983 action against the judges of the OCCA after the OCCA denied his motion to recuse. Mehdipour v. Chapel, Case No. CIV-01-346-C; see also Response, Ex. U (docket in Case No. CIV-01-346-C). The action was dismissed as frivolous, [Doc. No. 13], and affirmed on appeal. Response, Ex. V ( Mehdipour v. Chapel, No. 01-6137 (10^th Cir. Nov. 29, 2001)).
(8) On March 9, 2001, while his direct appeal was pending, Mr. Mehdipour filed a habeas petition raising 16 grounds for relief under 28 U.S.C. § 2254, alleging that exhaustion was not required because of an inordinate delay in his direct appeal. See Mehdipour v. Saffle, Case No. CIV-01-431-C. On July 24, 2001, the district court dismissed the petition without prejudice, adopting the magistrate judge's finding that under the factors set forth in Harris v. Champion, 15 F.3d 1538 (10^th Cir. 1994), Mr. Mehdipour failed to show that his appeal had been unduly delayed and recommending that the petition be dismissed for failure to exhaust state court remedies. See Response, Exs. L and M. On appeal, the Tenth Circuit agreed that Mehdipour had not exhausted his state court remedies before filing his petition, and the appeal was dismissed. Response, Ex. O ( Mehdipour v. Saffle, Case No. 01-6324, Order and Judgment, dated June 10, 2002)).

5 Petitioner was represented at trial by retained counsel, W. Creekmore Wallace II. Petitioner had previously discharged three other retained attorneys: Mac Oyler, Stan Chatman and Johnie O'Neal. Record, O.R. at 162, 185, 188, 192, 343-46, 354-57, 358. Petitioner retained yet another attorney, Irven Box, to represent him at sentencing and on direct appeal.

Counsel initiated an appeal of Petitioner's conviction to the Oklahoma Court of Criminal Appeals (OCCA), Record, O.R. at 639-47, on July 23, 1999, and filed Petitioner's brief in chief on February 22, 2000. See Response, Ex. Y (docket in Mehdipour v. State, Case No. F-1999-1015). However, on February 28, 2000, Petitioner filed a pro se motion to strike the brief in chief and a notice to the OCCA that he had discharged his counsel and intended to represent himself on appeal. Response, Exs. Y, Z and AA. Counsel filed a motion to withdraw. Response, Ex. BB. On March 27, 2000, the OCCA denied Petitioner's motion and counsel's motion to withdraw and advised Petitioner regarding the procedure necessary for proceeding pro se. Response, Ex. CC. On April 26, 2000, after the State had filed a response brief, the OCCA granted Petitioner's motion to stay proceedings pending Petitioner's compliance with the procedure for proceeding pro se. Response, Exs. DD and EE. On December 6, 2000, after a state district court granted Petitioner's application to represent himself on direct appeal, the OCCA issued an order lifting the stay on proceedings, allowing Petitioner to proceed pro se on appeal, allowing Petitioner's counsel of record to withdraw, striking the brief previously filed by counsel and directing the clerk of the court to file Petitioner's pro se brief. Response, Ex. X. In addition, the OCCA directed the State to respond to Petitioner's pro se brief raising sixteen grounds of error. Id.

On December 27, 2000, Mr. Mehdipour filed a motion to recuse and/or disqualify the judges of the OCCA, alleging that under the circumstances of his case, including a pending civil rights action in federal court against them, the OCCA judges were biased and prejudiced against him. Response, Ex. Q. The OCCA denied this motion on January 23, 2001. Response, Ex. Y (Case No. F-1999-1015 docket).

On October 3, 2001, the OCCA affirmed Petitioner's conviction and sentence in a fifteen-page summary opinion. Response, Ex. D, Mehdipour v. State, Case No. F-19991-015. A petition for rehearing was denied by the OCCA. Response, Exs. E and F. Thereafter, Petitioner filed an application for post-conviction relief, which application was denied by the district court. Response. Ex G. Petitioner sought an appeal of that denial in the Oklahoma Supreme Court and the matter was transferred to the OCCA which affirmed the denial of post-conviction relief. Response, Exs. H, I, J and K.

In his brief in support (hereinafter "Petitioner's Brief") Petitioner raises the following thirteen grounds for federal habeas relief:

1. Petitioner is in custody under [a] void judgment and sentence in violation of United States Constitution to due process.

2. Petitioner['s] conviction can not stand, because the warrantless arrest was without exigent [circumstances], and in violation of the Fourth and Fourteenth Amendment of the United States Constitution.

3. Petitioner['s] conviction is illegal and unconstitutional, [as it] is barred by the doctrine of collateral estoppel.

4. Petitioner [was] de[nied] a fair and impa[r]tial tribunal to review his appeal.

5. Petitioner has been denied a fast and speedy appeal in violation of his right to due process and equal protection of law.

6. Petitioner was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments.

7. The trial court erred by speculating [as to] the identity of the speaker as Iranian origin and in admitting the tape recording. [T]he tape was obtained in violation of federal and Oklahoma laws.

8. The trial court lacked jurisdiction to impose sentence because Petitioner was not properly bound over for trial. The magistrate erred in denying the right to counsel at a critical stage and denied Petitioner the right to confront and cross examine witnesses at [the] preliminary [hearing] to confirm jurisdiction in violation of the Fifth, Sixth and Fourteenth Amendments.

9. The evidence was insufficient to sustain a conviction.

10. Petitioner was denied his due process right to a fair trial due to the improper introduction of "other crimes" evidence.

11. Petitioner was subject to fundamental denial of due process by the trial j[ud]ge as Petitioner did not receive a fair and impartial trial due to the trial judge's bias, partiality, prejudice and erroneous rulings.

12. The prosecution manufactured the charge and obstructed justice, violated Petitioner's right to due process, was biased, and used improper testimony of a State's witness in violation of the Fifth and Fourteenth Amendments. Petitioner is actually innocent of any wrongdoing.

13. Petitioner's Fifth, Sixth and Fourteenth Amendment rights were violated due to the untruthfulness of the arresting officer's affidavit and the trial court erred in not conducting a Frank's hearing on the matter.

Petitioner's Brief [Doc. No. 7].

Discussion Standard of Review

For factual and legal issues that have been adjudicated in state court, this Court may only grant a writ of habeas corpus if that adjudication "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) and (2). "Under the `contrary to' clause, federal habeas courts may issue the writ only `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 decides a case differently than [the Court] has on a set of materially indistinguishable facts.'" Upchurch v. Bruce, 333 F.3d 1158, 1162 (10^th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). "Under the `unreasonable application' clause, a federal court may grant habeas relief only `if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 1162-63; accord Wiggins v. Smith, 539 U.S. 510, 520 (2003). "In other words, a federal court may grant relief when a state has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins, 539 U.S. at 520 (citation and quotation omitted). In this regard, the Supreme Court has emphasized that it is not enough that the state court applied clearly established federal law erroneously or incorrectly; the application must also be unreasonable. Williams v. Taylor, 529 U.S. at 410-11. See also Mitchell v. Gibson, 262 F.3d 1036, 1045 (10^th Cir. 2001) ("The Supreme Court has cautioned `that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.'") (quoting Williams 529 U.S. at 412) (emphasis in original). "`[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. "Rather, it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner." Price v. Vincent, 538 U.S. 634, 641 (2003) (quotation omitted).

The fact that the OCCA denied relief to Petitioner in a summary opinion does not affect the deference owed to the state court's results. Aycox v. Little, 196 F.3d 1174, 1177 (10^th Cir. 1999); see also Early v. Packer, 537 U.S. 3, 8 (2002) ( per curiam) (holding that state court's failure to discuss or even to be aware of federal precedent does not in itself render the decision contrary to federal law); Miller v. Mullin, 354 F.3d 1288, 1292-93 (10^thCir. 2004) (applying the § 2254(d) deferential standard "notwithstanding the [OCCA's] failure to cite or discuss federal case law") (citing Mitchell v. Esparza, 540 U.S. 12, 16 (2003)).

Additionally, this Court must afford a presumption of correctness to a state court's factual findings, unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Sallahdin v. Gibson, 275 F.3d 1211, 1222 (10^th Cir. 2002). "Quite simply, the `AEDPA'⁶ increases the deference to be paid by the federal courts to the state court's factual findings and legal determinations." LaFevers v. Gibson, 182 F.3d 705, 711 (10^th Cir. 1999) (quoting Houchin v. Zavaras, 107 F.3d 1465, 1470 (10^thCir. 1997)).

6 Antiterrorism and Effective Death Penalty Act of 1996. Pub.L. No. 104-132, § 104, 110 Stat. 1214 (1996).

I. Allegation of Void Judgment and Sentence

In his first ground for relief, Petitioner alleges that his Judgment and Sentence is void on due process grounds because it reflects his conviction was based upon a violation of Title 62 O.S. § 2-401[62-2-401], a civil statute, rather than the correct criminal statute, Title 63 O.S. § 2-401[9-2-401]. While Petitioner's direct appeal was pending, Petitioner also raised this issue before the OCCA in a "Motion to Release from Unlawful Detainer." Response, Ex. O. The OCCA denied Petitioner's motion, finding that Petitioner was "imprisoned based upon his conviction for distribution of controlled dangerous substance, under 63 O.S. § 2-401[ 63-2-401]," which is not a civil offense. Response, Ex. P. As to the alleged error in Petitioner's Judgment and Sentence the Court stated:

The Court recognizes that the Judgment and Sentence in [Petitioner's] case does cite to Title 62 of the Oklahoma Statutes, rather than Title 63. This is obviously a mere scrivener's error. [Petitioner] was properly charged and convicted under Title 63, and the Judgment and Sentence references the proper section, § 2-401, as well as correctly describing [Petitioner's] crime, "Distribution of a Controlled Dangerous Substance — Methamphetamine."

Id., n. 1.

The OCCA's factual finding that the Petitioner's Judgment and Sentence contained a scrivener's error is presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, Petitioner fails to meet this burden. The record reflects that Petitioner was charged by Information with one count of distribution of controlled dangerous substance, pursuant to Okla. Stat. tit. 63, § 2-401. Record, O.R. at 1. Petitioner was clearly provided with notice of the crime with which he was charged and he defended against this charge at trial. He does not allege otherwise. The jury returned a verdict finding Petitioner guilty of distribution of a controlled dangerous substance, and the Judgment and Sentence correctly lists the offense of conviction as "Distribution of a Controlled Dangerous Substance" under the correct section, § 2-401, albeit the incorrect title. Record, O.R. at 636.

The Fourteenth Amendment specifies that no State shall "deprive any person of life, liberty, or property, without due process of law. . . ." U.S. CONST. amend. XIV, § 1. "`The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'" Kowalczyk v. INS, 245 F.3d 1143, 1147 (10^th Cir. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

Petitioner fails to show how his due process rights were violated by the scrivener's error. Therefore, the undersigned finds that the OCCA's rejection of Petitioner's challenge to his judgment and sentence of conviction is reasonable. See Scott v. Ward, No. 98-6377, 1999 WL 285916, at *1 (10^th Cir. May 7, 1999)⁷ (finding no substantial showing of the denial of a constitutional right where the district court found petitioner's allegation that he was convicted under a repealed statute was procedurally barred and was based on nothing more than a mere "scrivener's error" in the sentencing form used by the state trial court, which error had absolutely no effect on petitioner's substantive rights). Accordingly, the undersigned finds that Petitioner is not entitled to habeas relief in Ground One.

7 This unpublished disposition and others cited herein are cited as persuasive authority pursuant to Tenth Circuit Rule 36.3.

II. Fourth Amendment Issues

In Ground Two, Petitioner claims that his arrest was unconstitutional because it was made without a warrant or probable cause or exigent circumstances. Petitioner further asserts that because his arrest was illegal, the seizure of $1,083.00 in currency at the time of his arrest was unreasonable. In Ground Seven, Petitioner also raises Fourth Amendment challenges to the trial court's admission of State Exhibit 1, an audiotape of (1) a telephone conversation between Petitioner and Mr. Stafford setting up the drug sale, and (2) the conversation during the actual drug sale. Petitioner's Brief at 18.⁸ These claims have been fully and fairly litigated in state court and are therefore precluded by Stone v. Powell, 428 U.S. 465 (1976).⁹

8 Petitioner's allegation that the tape should have been suppressed as a violation of the federal wiretap statute, 18 U.S.C. §§ 2510- 2522, is addressed separately infra, in connection with Petitioner's Ground Seven.

9 While Respondent argues that consideration of Petitioner's Fourth Amendment claim in Ground Two is precluded by Stone, Respondent omits such argument with respect to the Fourth Amendment claim in Ground Seven, and argues only that the OCCA's decision on this issue was a correct application of Supreme Court law. Response at 33. The Tenth Circuit has determined that a federal court may raise sua sponte the issue of whether a claim has been fully and fairly litigated in the state courts, and thus precluded by Stone. See Thomas v. Cowley, No. 90-6105, 1991 WL151773, at *4 (10^th Cir. Aug. 8, 1991) (citing Davis v. Blackburn, 803 F.2d 1371, 1372 (5^th Cir. 1986) ( per curiam)).

"Under Stone, habeas relief shall not be granted on the ground that the trial court admitted evidence obtained in violation of the Fourth Amendment despite the judicially-created exclusionary rule, provided that the defendant had an opportunity for full and fair litigation of the Fourth Amendment claim." Smallwood v. Gibson, 191 F.3d 1257, 1265 (10^th Cir. 1999) (citing Stone v. Powell, 428 U.S. at 481-82). That opportunity may exist either in the state trial or appellate courts. See Stone v. Powell, 428 U.S. at 494 n. 37 ("we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review").

In his petition and supporting brief, Petitioner simply reasserts the arguments raised before the state courts to support his claim of a Fourth Amendment violation without reference to his opportunity to litigate that claim at trial or on appeal. However, in response to Respondent's contention that Petitioner's Fourth Amendment claims are barred by Stone, Petitioner contends that Stone does not bar habeas review of his Fourth Amendment claim because "the state court proceeding is ineffective and inadequate." Petitioner's Reply at 5. According to Petitioner, any reasonable factfinder "will determine . . . the Fourth Amendment violation occurred." Id. at 8.

Petitioner's contention is without merit. Petitioner's assertion that the state proceedings were ineffective and inadequate are conclusory and without factual support. Moreover, a federal habeas court need only determine that a full and fair opportunity to litigate the Fourth Amendment claim was provided in the course of the state court proceedings. Here, the record establishes that Petitioner had such a fair and full opportunity in state court. Before trial, Petitioner's various trial counsel and Petitioner appearing pro se challenged the validity of his arrest (Ground Two) by filing numerous motions to suppress, motions to dismiss and motions to quash. Record, O.R. at 150-58; 172-76; 177; 181-82; 210-15; 319-42; 495-504. The trial court overruled these motions. Record, O.R. at 218. On direct appeal of his conviction to the OCCA, Petitioner again challenged his warrantless arrest. Response, Ex. A at 22-26. The OCCA considered and rejected the claim.¹⁰ Response, Ex. D at 8-9.

10 The OCCA found that Petitioner failed to establish that Agent Snowden was constitutionally required, under either the federal or state constitution, to obtain a warrant in order to arrest Petitioner for the crime of distributing methamphetamine in the agent's presence. Response, Ex. D at 8 and n. 20 (citing Okla. Stat. tit. 22, § 196(1) and (3) (1994)) and n. 21 (citing United States v. Watson, 423 U.S. 411, 416-17 (1976)). The Court also pointed out that because all of the evidence relating to the distribution charge was obtained on March 28, 1997, the date of the drug transaction, Petitioner's arrest four months later, even if illegal, would not have required suppression of the evidence in the case. Id. at 9.

With respect to the admission of the audiotape challenged in Ground Seven, Petitioner's counsel filed a pretrial motion to suppress the audiotape alleging in part a violation of the Fourth Amendment, and in a hearing held before the state trial court, such motion was denied. See Record, O.R. 527-32 and Motion Transcript dated February 22, 1999. On direct appeal, the OCCA found that the admission of the audiotape recording did not violate Petitioner's Fourth Amendment rights. Response, Ex. D at 5.¹¹

11 As the basis for rejecting Petitioner's Fourth Amendment claim, the OCCA found that "an individual has no reasonable expectation of privacy in the things he voluntarily tells someone else; nor does he have any reasonable expectation that such statements will not be tape recorded or passed on the police." Response, Ex. D at 5 (citing United States v. Jacobsen, 466 U.S. 109, 117 (1984); United States v. White, 401 U.S. 745, 749-51 (1971) and Lopez v. United States, 373 U.S. 427, 437-40 (1963)).

Thus, Petitioner was clearly provided a full and fair opportunity to litigate his Fourth Amendment claims and therefore, habeas relief on such claims should be denied. Stone v. Powell, 428 U.S. at 489-90, Miranda v. Cooper, 967 F.2d 392, 401 (10^th Cir. 1992); see also Smallwood, 191 F.3d at 1265 (affirming denial of federal habeas relief based on alleged Fourth Amendment violations pursuant to Stone where petitioner had moved to suppress the evidence resulting from his alleged unlawful seizure, objected to the admission of this evidence at trial and presented the issue to the OCCA on direct appeal); Magirl v. Dorsey, No. 98-2129, 1999 WL 273330, at *1 (10^th Cir. May 5, 1999) (noting that the court was barred from considering a habeas petitioner's Fourth Amendment claims because the petitioner had "argued that the evidence should be suppressed as the fruit of an illegal arrest . . . in pre-trial proceedings [and] on direct appeal. . . ."); Washington v. State of Oklahoma, No. 97-6272, 1998 WL 327866 (10^th Cir. June 18, 1998) (where state courts denied on the merits petitioner's challenge to the constitutionality of a nighttime search, both at a suppression hearing in the trial court and on direct appeal, petitioner had a full and fair opportunity to litigate his Fourth Amendment claim).

III. Collateral Estoppel Claim

In Ground Three Petitioner asserts that his conviction is barred by the doctrine of collateral estoppel. Petitioner's Brief at 11. Citing Ashe v. Swenson, 397 U.S. 436, 444 (1970), he contends the State of Oklahoma was collaterally estopped from criminally prosecuting him for distribution of methamphetamine because his civil forfeiture proceeding was adjudicated adversely to the State prior to his conviction.

The Double Jeopardy Clause of the Constitution, as applied to the states through the Fourteenth Amendment, embodies the doctrine of collateral estoppel. Ashe, 397 U.S. at 445. Collateral estoppel, or, as it is often known, issue preclusion, "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443.¹² The Supreme Court has further held that "the burden [is] on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Dowling v. United States, 493 U.S. 342, 350 (1990). The Tenth Circuit discussed the application of Ashe in United States v. Rogers, 960 F.2d 1501 (10^thCir. 1992), and explained:

12 The Court wrote in Ashe:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, [the proper] approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

Ashe, 397 U.S. at 444 (internal quotation marks omitted).

The Supreme Court mandates two inquiries in determining whether the doctrine of collateral estoppel applies: "First, what facts were necessarily determined in the first law suit? . . . Second, has the government in a subsequent trial tried to relitigate facts necessarily established against it in the first trial?"

Id. at 1508. According to the Tenth Circuit the following criteria must be met for collateral estoppel to apply:

(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Id.

On direct appeal, the OCCA found that Petitioner failed to establish two of the necessary requirements set forth in Rogers for application of the collateral estoppel doctrine:

First, the issue at stake in the civil forfeiture action (whether drug dealing was the likely source of the $1083 taken from [Petitioner] when he was arrested) is totally distinct from the issue at stake in the criminal case (whether he sold 13.1 grams of methamphetamine to Agent Snowden four months earlier). Second, because the issue of whether [Petitioner] sold drugs to Snowden was not even at issue in the forfeiture action, the State did not have a full and fair opportunity to litigate this issue in the prior case. The dismissal of the forfeiture action did not involve any finding that [Petitioner] was innocent of selling drugs to Snowden, and the district court properly rejected [Petitioner's] motion to dismiss based upon collateral estoppel.

Response, Ex. D at 6 and n. 17 (citing Rogers, supra, and setting forth the four conditions delineated in Rogers; also citing Brown v. State, 989 P.2d 913, 921 (Okla.Crim.App. 1998)).

The record supports the OCCA's findings. The current record shows that the subject of the civil forfeiture was whether the sum of money taken from Petitioner on July 31, 1997, the date of his arrest, was the result of narcotics operations. Petitioner points to no evidence showing that the dismissal of the civil forfeiture action decided any issue related to the crime charged — Petitioner's distribution of methamphetamine to Agent Snowden on March 28, 1997.¹³ Therefore, the undersigned finds that Petitioner has failed to establish that the decision of the OCCA with respect to the collateral estoppel issue was contrary to or an unreasonable application of Supreme Court law. See Rudolph v. Galetka, No. 03-4192, 2004 WL 2166171 (10^th Cir. Sept. 28, 2004). Accordingly, it is recommended that habeas relief be denied on Petitioner's collateral estoppel claim.

13 At trial Agent Snowden testified that the OBN moved to dismiss the civil forfeiture action. Tr. 146. According to Snowden, agency officials determined that to prove the currency seized from Petitioner upon his arrest was illegal drug money would require that the agency divulge information about an ongoing OBN investigation into an illegal drug operation in Tulsa. Record, Tr. at 147.

IV. Due Process — Fair Tribunal

In his fourth ground for relief Petitioner claims that he was denied a fair and impartial tribunal on direct appeal. Petitioner's Brief at 12. As factual support for this ground for relief, Petitioner merely states that the judges of the OCCA declined to recuse from his case during direct appeal and failed to rule on three unidentified propositions of error, resulting in a denial of his due process and equal protection rights. Id. (citing Hinman v. Rogers, 831 F.2d 937, 939 (10^th Cir. 1987)). As previously noted, on December 27, 2000, after Petitioner had been granted leave to proceed pro se on direct appeal and had filed his brief in chief with the OCCA, he filed in that court a motion to recuse or disqualify, seeking to remove the judges of the OCCA from deciding his direct appeal alleging that an "apparent conflict exists between [Petitioner] and the judges," and noting that the circumstances surrounding his appeal, including the fact that both Petitioner and his brother had filed civil rights lawsuits against the state appellate judges in federal district court, cast doubt on the Court's impartiality. Response, Ex. Q. On January 23, 2001, the OCCA denied Petitioner's motion. Response, Ex. W.

The Due Process Clause guarantees a criminal defendant the right to a fair and impartial judge. In re Murchison, 349 U.S. 133, 136 (1955). To succeed on a judicial bias claim, however, a petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47 (1975). Moreover, the Supreme Court has determined that "most matters relating to judicial disqualification [do] not rise to a constitutional level." Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986) (quoting FTC v. Cement Institute, 333 U.S. 683, 702 (1948)). The federal courts may only intervene in state judicial process to correct wrongs of a constitutional dimension. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Wainwright v. Goode, 464 U.S. 78, 86 (1983).

The undersigned finds that Petitioner has failed to present any facts that would support a finding of actual bias or create the inference of bias. Petitioner's allegations of "apparent" conflict or bias are unlike any in which the Supreme Court has found recusal is required. See Aetna, 475 U.S. at 824 (calling for recusal where state supreme court justice's interest was "direct, personal, substantial, [and] pecuniary"); In re Murchison, 349 U.S. at 138 (finding bias where judge acting as one-man grand jury in secret hearings charged two witnesses with contempt and then presided over witnesses' contempt hearings); Taylor v. Hayes, 418 U.S. 488, 501-03 (1974) (finding bias where judge was subject to litigant's direct personal insults). Nor does Petitioner put forth any facts to rebut the presumption that the OCCA judges were impartial. See Liteky v. United States, 510 U.S. 540, 556 n. 3 (1994) (holding that "when intrajudicial behavior is at issue, manifestations of animosity must be much more than subtle to establish bias").

In the summary opinion affirming Petitioner's conviction and sentence, the OCCA thoroughly addressed each of the sixteen propositions of error Petitioner raised in his pro se brief in chief, and supported its findings and conclusions with citations to state and federal law. See Response, Exs. A and D. Petitioner contends that the rulings made by the OCCA should in itself constitute evidence of bias; however, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. See also Carter v. Gibson, No. 00-6177, 2001 WL 1612065, at *7 (10^th Cir. Dec. 18, 2001) (finding petitioner's unsupported claims of bias did not show actual judicial bias or even an appearance of bias; holding the judicial rulings by the post-conviction trial judge and the OCCA denying post-conviction relief failed to establish bias or partiality) (citing Liteky, 510 U.S. at 555). Given Petitioner's failure to put forth facts establishing unconstitutional bias, the undersigned cannot find that the OCCA interpreted the facts before them in an unreasonable fashion in refusing to recuse from adjudicating Petitioner's direct appeal. Accordingly, Petitioner is not entitled to habeas relief in Ground Four.

V. Denial of Speedy Appeal Claim

In Ground Five, Petitioner alleges that he was denied a appeal in violation of his due process and equal protection rights because it took the OCCA approximately two and a half years to decide his direct appeal. Petitioner's Brief at 14. He claims that the OCCA's decision was "arbitrary and adversary without rule (sic) on Three proposition" and therefore he had to file a post-conviction application which resulted in a 45-month delay in hearing all of his claims. Id. Nothing in the record reflects that Petitioner has raised a denial of speedy appeal claim in the state courts. Notwithstanding exhaustion and procedural default issues, this claim may be easily denied on the merits. See Romero v. Furlong, 215 F.3d 1107, 1111 (10^th Cir. 2000).¹⁴

14 Petitioner's unexhausted claim is no longer available in state court where it would be defaulted due to its omission from Petitioner's first state post-conviction application, and thus this claim may be deemed procedurally barred. See Hawkins v. Mullin, 291 F.3d 658, 668 (10^th Cir. 2002) (following Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)); Moore v. Schoeman, 288 F.3d 1231, 1233 (10^th Cir. 2002) (designating operative principle as "anticipatory procedural bar").

In Harris v. Champion, 15 F.3d 1538, 1557 (10^th Cir. 1994) (Harris II),¹⁵ the Circuit Court held that inordinate delay in adjudicating a defendant's direct criminal appeal could give rise to an independent due process violation.¹⁶ In Harris v. Champion, 48 F.3d 1127, 1132 (10^th Cir. 1995) (Harris III), the Court held that a rebuttable presumption of prejudice arises when the delay attributable to the government exceeds two years.¹⁷

15 In a series of cases, including Harris v. Champion, 938 F.2d 1062 (10^th Cir. 1991) ( Harris I), Hill v. Reynolds, 942 F.2d 1494 (10^th Cir. 1991), and Harris v. Champion, 15 F.3d 1538 (10^th Cir. 1994) ( Harris II), the Tenth Circuit examined the Oklahoma criminal appellate process insofar as it contributed to delay in deciding direct criminal appeals of indigent defendants.

16 The Tenth Circuit identified the following four factors to be considered in reviewing for a due process violation: (1) the length of delay; (2) the reason for the delay and whether it was justified; (3) whether defendant asserted his right to a timely appeal; and (4) whether the delay prejudiced defendant in relation to specific interests sought to be protected by a timely appeal. Harris, 15 F.3d at 1559.

17 Petitioner's attempt to allege that the period of time he spent pursuing post-conviction relief contributed to the delay of the adjudication of his direct appeal is also without merit. The Tenth Circuit has held that "the holding in Harris has not been extended to state post-conviction proceedings," and thus "state post-conviction delays do not give rise to independent due process claims that are cognizable under § 2254." Body v. Watkins, No. 01-1556, 2002 WL 31323856, at *3 (10^th Cir. Oct. 16, 2002).

In affirming the dismissal of Petitioner's second civil rights action against the judges of the OCCA, Mehdipour v. Chapel, No. 01-6137, at *1 (10^th Cir. Nov. 29, 2001), see supra Note 4, the Tenth Circuit declined to address a denial of speedy appeal claim raised for the first time on appeal to the Circuit Court. Nonetheless, the Tenth Circuit "observe[d] that most of the delay of which he complains resulted from resolution of Mehdipour's successful motion to fire his counsel and submit his own appellate brief." Response, Ex. V. This observation by the Circuit Court is confirmed by the relevant dates previously set forth in the summary of the background of the instant case. The undersigned finds no evidence in the record that any alleged inordinate delay was attributable to the State. In any event, even assuming the other three Harris requirements have been met, Petitioner fails to show that he has suffered a due process violation — his unsuccessful direct appeal rebuts the presumption of prejudice arising from the delay. See Harris II, 15 F.3d at 1564-65 (explaining that defendant cannot show impairment of ability to mount defense on retrial, constitutionally cognizable anxiety, or oppressive incarceration, if appeal is meritless).¹⁸ Additionally, Petitioner fails to show actual prejudice arising from the delay; i.e., that his direct appeal would have been decided differently but for the appellate delay. Id. at 1566. See also United States v. Wiktor, 146 F.3d 815 (10^th Cir. 1998) ; Petrick v. Reynolds, Nos. 96-7040, 96-7045, 1997 WL 31570, at *2 (10^th Cir. Jan. 27, 1997).

18 Even if a petitioner establishes a due process violation, the remedy for a due process violation caused by inordinate delay is not invalidation of the underlying conviction or immediate release from custody, but a conditional writ directing the state to release the petitioner if his appeal is not decided within a specified period. Harris, 15 F.3d at 1566-67. Alternatively, the district court could excuse exhaustion and address the merits of the petitioner's federal challenges to his conviction and sentence. Id. at 1567. Here, the merits of Petitioner's appeal have been reviewed and his appeal decided; thus, neither of these remedies is available.

The undersigned therefore finds that Petitioner's due process claim based on a delayed appeal is without merit. Accordingly, he is not entitled to habeas relief on this ground.

VI. Ineffective Assistance of Trial Counsel

In Ground Six Petitioner alleges that trial counsel was ineffective, another claim that was rejected by the OCCA. Petitioner's numerous claims of ineffective assistance may be liberally construed and summarized as: (1) failure to call crucial witnesses, including Petitioner, who wanted to testify on his own behalf, and certain witnesses who had been subpoenaed by Petitioner and were present at trial; (2) failure to investigate the case or interview witnesses (Agent Snowden, the confidential informant and alibi witnesses), and failure to find and list important documents and pictures; (3) failure to file pretrial motions that would have resulted in the evidence being suppressed; and (4) failure to request an independent fingerprint analysis of the controlled dangerous substance. Petitioner's Brief at 15.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that a defendant who claims that his counsel's assistance in his state trial was so defective as to require a reversal of his conviction must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. Id. at 687. The Supreme Court held that the proper standard for judging an attorney's performance in the trial court is that of a reasonably effective performance, considering all the circumstances. Id. In other words, the defendant must show that his counsel's representation fell below an objective standard of reasonableness. Id. at 688. The Supreme Court held further that "judicial scrutiny of counsel's performance must be highly deferential[,]" noting that "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.

In rejecting Petitioner's claims of ineffective assistance of counsel, the OCCA cited the familiar Strickland standard and found that:

[Petitioner] fails to identify any specific alibi witnesses or supporting "pictures" that should have been put on at trial but were not. The documents he now points to, such as his private process server's license, do not establish that he was not at home at the time of the sale. Regarding Harvey Stafford, Jr., the confidential informant, the State did not need Stafford as a witness, and the record strong suggests that defense counsel chose not to call Stafford based upon the reasonable belief that he would not be a credible witness and would not likely help the defense. The record does not contain any evidence supporting [Petitioner's] claim that he was not allowed to testify. While [Petitioner] may regret not testifying, the record suggests that his counsel persuaded him not to do so. This is not ineffective assistance.

In addition, [Petitioner] has shown neither inadequate performance nor prejudice regarding the failure of his criminal counsel to depose Snowden, who was deposed on the context of his civil forfeiture case. [Petitioner's] defense counsel had access to the transcript from that deposition and used it to impeach Snowden on a number of issues. Regarding the filing of pre-trial motions, [Petitioner] does not indicate what additional pre-trial motion should have been filed; nor does he establish that the denial of his numerous motions to suppress, quash, dismiss, etc., was improper. In addition, under the circumstances of this case, it was not unreasonable to forego an independent fingerprint analysis of the baggies, and [Petitioner] cannot establish prejudice thereby. Response, Ex. D. at 2-4 and n. 2 (citing Strickland, supra). Because the OCCA applied the correct federal law to deny Petitioner relief on this claim, this Court considers only whether the OCCA did so in an objectively reasonable manner. See 28 U.S.C. § 2254(d)(1); see also Bell v. Cone, 535 U.S. 685, 699 (2002).

A. Failure to call Witnesses

Petitioner alleges that he wanted to testify on his own behalf and trial counsel would not allow him to do so. Petitioner's Brief at 15; Petitioner's Appendix, Ex. 15. However, the undersigned agrees with the OCCA's finding that the transcript does not support Petitioner's assertion that his trial counsel prevented him from testifying. The record shows that Petitioner's trial counsel announced in open court at the close of the State's case that the defense rested, then counsel stated "Hold on, Judge," and asked to confer with Petitioner for five minutes about his desire to testify.¹⁹ Record, Tr. at 196-97. Afterward, counsel, with Petitioner present, announced to the trial court that the defense rested. Although Petitioner has filed an affidavit alleging he informed trial counsel at the start of his trial that he wanted to testify, he does not explain how trial counsel denied his right to testify. The record does not reflect any objection by Petitioner to the announcement that defense rested, nor does it indicate he raised the issue of his testifying any other time during the trial. See United States v. Janoe, 720 F.2d 1156, 1161 n. 9 (10^th Cir. 1983) (holding that right to testify not denied where "defendant made no objection to his attorney's statements that defendant would not testify and made no request to testify"). In any event, even assuming counsel persuaded Petitioner not to testify, Petitioner fails to overcome the presumption that the calculated decision regarding his testimony "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Given the overwhelming evidence of Petitioner's guilt through the testimony of Agent Snowden and Agent Guyton, coupled with the audiotape of the transaction and the packets of methamphetamine purchased from Petitioner, it is reasonable to assume that counsel advised Petitioner that it would not be in his best interest to testify. Petitioner may have been influenced by his counsel's advice suggesting that he not testify, but any such influence does not amount to ineffective assistance of counsel. "For counsel's decision to rise to the level of constitutional ineffectiveness, the decision must have been completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy." See Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10^th Cir. 1997) (alterations and quotation marks omitted). Here, even if defense counsel persuaded Petitioner not to testify, such advice had a reasonable relationship to a defense strategy. See Hooks v. Ward, 184 F.3d 1206, 1219 (10^th Cir. 1999) (finding no error when counsel advised defendant not to testify); Underwood v. Massie, No. 02-6361, 2003 WL 22211613, at *1 (10^th Cir. Sept. 25, 2003) (finding insufficient allegation of ineffective assistance of counsel where petitioner failed to explain how her trial counsel "stood in the way" of her right to testify, how or when she informed counsel of her alleged desire to testify or even how the absence of her testimony prejudiced her defense).

19 Counsel stated: "The man has changed his mind on me and now he wants to testify and I have got to find out whether he really wants to testify or not and tell him what the result would be if he does testify." Record, Tr. at 197.

In addition, here, as on direct appeal, Petitioner fails to allege what the substance of his testimony would have been. Absent some evidence regarding the omitted testimony, Petitioner cannot show a reasonable probability that the outcome would have been different if he had testified. Strickland, 466 U.S. at 694. Therefore, counsel was not ineffective in this regard.

Although Petitioner also claims counsel was ineffective for failing to call other witnesses, including certain witnesses who had been subpoenaed by Petitioner and were present at trial, he fails to identify such witnesses, what their testimony would have been or what evidence would support their testimony. Petitioner's conclusory allegations are insufficient to support a claim that trial counsel was constitutionally ineffective. See James v. Cody, No. 96-6170, 1996 WL 536522 at *1 (10^th Cir. Sept. 23, 1996) (conclusory allegations without articulated facts failed to support claim that trial counsel's performance fell below an objective standard of reasonableness or that the representation prejudiced him in any way); United States v. Hood, No. 96-6151, 1996 WL 566158 at * 1 (10^th Cir. Oct. 4, 1996) (" Conclusory allegations of ineffective assistance of counsel do not warrant relief.").

B. Failure to Investigate Documents, Pictures and Alibi Witnesses

Petitioner also alleges that counsel failed to investigate the case to find and list important documents and pictures. Petitioner further alleges that counsel was deficient in that he failed to interview witnesses, specifically, "alibi" witnesses, Harvey Stafford, the confidential informant, and Agent Snowden.

With respect to the confidential informant, Petitioner fails to allege or show how counsel's failure to interview Stafford would have reasonably affected the outcome of his trial. Agent Snowden's testimony that he purchased methamphetamine directly from Petitioner clearly provides sufficient support for the jury's verdict. Petitioner fails to show how that verdict could have been changed by any testimony from Stafford. Therefore, counsel was not ineffective by failing to interview Stafford or call him as a witness at trial.

With respect to counsel's failure to obtain and list important documents and pictures and his failure to present alibi witnesses, Petitioner fails to identify such witnesses or provide evidence of the substance of such witnesses' testimony. Defendants are entitled "only to a reasonable and adequate defense, not the defense which, in hindsight, they believe would have been the best." Boyd v. Ward, 179 F.3d 904, 915 (10^thCir. 1999). Here, Petitioner fails to support his claim with any evidence that such documents or witnesses would have been able to refute the testimony and direct evidence that Petitioner sold methamphetamine to Agent Snowden on March 28, 1997. Petitioner fails to show ineffective assistance of counsel in this regard.

Petitioner also claims that counsel should have deposed Agent Snowden before trial and that he was prejudiced by counsel's failure to do so. Petitioner claims that because counsel had not deposed Snowden, he "opened the door" to the admission of the other crimes evidence, specifically, the OBN's Tulsa investigation, brought about by counsel's questions on cross-examination of Agent Snowden. Petitioner's Reply at 18.

Even assuming counsel was deficient in failing to interview or depose Agent Snowden prior to trial, Petitioner must establish that counsel's performance so prejudiced him as to deprive him of a fair trial. Strickland, 466 U.S. at 687. In assessing prejudice, the Court must consider the totality of the evidence, not just the evidence helpful to Petitioner. See Boyd, 179 F.3d at 914. Given the overwhelming evidence of Petitioner's guilt, as discussed in Ground Nine, infra, and given the finding that Petitioner fails to show how the admission of the other crimes evidence rendered his trial fundamentally unfair, as discussed in connection with Ground Ten, infra, the undersigned cannot say that counsel's failure was sufficient to undermine to under confidence in the outcome of the jury verdict. As Petitioner cannot establish prejudice, this claim fails.

C. Failure to File Pretrial Motions

Petitioner also alleges that counsel was ineffective for failing to file pretrial motions "that would have resulted in the evidence being suppressed." Petitioner's Brief at 15. The record shows that Petitioner had multiple counsel prior to trial and he does not articulate which counsel was inadequate. In any event, as noted by the OCCA, the record is replete with pretrial motions filed by Petitioner's various counsel, and the undersigned agrees with the OCCA's finding that Petitioner has failed to "indicate what additional pre-trial motions should have been filed; nor does he establish that the denial of his numerous motions to suppress, quash, dismiss, etc. was improper." Response, Ex. D at 3-4. Petitioner fails to show that counsel's performance in this regard "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.

D. Failure to Request Fingerprint Analysis

Petitioner alleges counsel was ineffective for failing to request an independent fingerprint analysis of the baggies which contained the purchased methamphetamine. As with Petitioner's previous allegations of attorney error, Petitioner does not allege how counsel's failure to conduct a fingerprint analysis prejudiced him. At trial, Petitioner's counsel cross-examined Agent Snowden regarding the lack of fingerprints. Record, Tr. at 118, 170-71, 228, 233. Petitioner fails to demonstrate how a fingerprint analysis on the baggies would have changed the results of the proceeding. As discussed in Ground Nine, there was overwhelming evidence to support the jury's verdict based on Agent Snowden's testimony that Petitioner personally sold methamphetamine to Snowden. Based on a review of the record and "applying a heavy measure of deference to counsel[s'] judgments," Strickland, 466 U.S. at 691, the undersigned finds that counsel's failure to request a fingerprint analysis of the baggies represents "an objectively reasonable decision supported by a reasonable investigation." Miles v. Dorsey, 61 F.3d 1459, 1476-77 (10^thCir. 1995).

In sum, Petitioner has failed to establish both deficient performance and prejudice with respect to his trial counsel's representation. Therefore, the undersigned finds that the OCCA's determination that counsel was not ineffective was not an unreasonable application of Strickland v. Washington, supra. Accordingly, Petitioner is not entitled to habeas relief based on his claims of ineffective assistance of counsel.

VII. Admission of Audiotape

In Ground Seven, Petitioner asserts that the Wire and Electronic Communications Interception and Interception of Oral Communications Act, codified at 18 U.S.C. § 25102-522 ("Wire Act") was violated by the admission into evidence of State's Exhibit 1, an audiotape which contained a recording of: (1) a telephone conversation between Petitioner and informant Stafford setting up the drug sale, recorded by Agent Snowden and (2) Agent Snowden's recording of the actual drug sale by Petitioner. Petitioner's Brief at 18-20. Petitioner further argues that the tape recording should not have been admitted as evidence because there was an insufficient showing of authenticity and a failure to establish chain of custody. Id. at 20-21.²⁰ Petitioner also claims the trial court erred by "speculating" as to the identity of the speaker on the tape. Id. at 18.

20 As previously discussed in connection with Ground Two, Petitioner's claim that the tape should have been suppressed as a violation of the Fourth Amendment is barred by Stone v. Powell, supra, because he had a full and fair opportunity to litigate this claim in state court.

A. Alleged Violation of Federal Statute

Petitioner first argues that the tape recording should have been suppressed based on federal statutory law. The audiotape admitted at trial, State's Exhibit 1, contained two conversations with Petitioner, both made on March 28, 1997. The first is a telephone conversation between the confidential informant Stafford and Petitioner during which the arrangements for the sale of methamphetamine were made. Agent Snowden testified that he was with Stafford at the time of the telephone call, that Stafford agreed to cooperate, consented to the recording and used Snowden's phone to call Petitioner. The second portion of the tape is the recording of the actual drug sale, made by Agent Snowden who was wearing a wire transmitter during the transaction. Record, Tr. 32-33, 119-20, 125-26, 156-57.

Under the Wire Act, evidence obtained through the unauthorized interception of wire or oral communications cannot be admitted in state court criminal proceedings.²¹ An "oral communication" encompasses conversations conducted under circumstances that would justify an expectation of privacy. 18 U.S.C. § 2510(2). An "interception" involves the acquisition through an "electronic, mechanical, or other device," of the contents of such communication. 18 U.S.C. § 2510(4). The Wire Act is not violated if the interception of an oral communication is done by a party to the conversation, or if a party to the conversation has given prior consent to the interception. 18 U.S.C. § 2511(2)(d).

21 Oklahoma's wiretap law may be found in the Security of Communications Act. See Okla. Stat. tit. 13, §§ 176.1-177.5.

Counsel for Petitioner filed two separate pretrial motions to suppress the audiotape as a violation of the Fourth, Fifth, Sixth and Fourteenth Amendments and a violation of the Wire Act, and these motions were argued before the state trial court and denied. See Record, O.R. at 527-32; 533-45; and Motion Transcript dated February 22, 1999, at 3-6, 7-12. In reviewing this claim on direct appeal, the OCCA concluded that Petitioner's federal statutory rights had not been violated due to consent of one party to each part of the recording. Response, Ex. D at 4 and n. 7 (citing 18 U.S.C. § 2511(2)(c) and Oklahoma's parallel provision, Okla. Stat. tit. 13, § 176.4(4)).

A state prisoner may obtain federal habeas corpus relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). In Johnson-Howell v. McKune, No. 98-3133, 2000 WL 223561, at *2 (10^th Cir. Feb. 28, 2000), a pre-AEDPA case, the petitioner, like Petitioner herein, alleged that evidence of a recorded phone conversation was obtained in violation of the federal wiretap statute, 18 U.S.C. §§ 2510- 2522. The Tenth Circuit Court of Appeals concluded that where such alleged error is neither constitutional or jurisdictional, "a habeas petition alleging violation of a federal statute will only be cognizable when it qualifies as `a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.'" Id. at *3 (quoting Hill v. United States, 368 U.S. 424, 428 (1962) and citing Knox v. Wyoming Dep't of Correction State Penitentiary Warden, 34 F.3d 964, 968 (10^th Cir. 1994));²² see also Lord v. Lambert, 347 F.3d 1091, 1094095 (9^th Cir. 2003) (in post-AEDPA state habeas case, applying standard set forth Hill to petitioner's Wire Act claim), cert. denied, 125 S.Ct. 77 (2004). See Reed v. Farley, 512 U.S. 339, 3535-4 (1994) ("[O]ur decisions assume that Hill controls collateral review — under both §§ 2254 and 2255 — when a federal statute, but not the Constitution, is the basis for the postconviction attack.").

22 In setting forth the appropriate inquiry, the Circuit Court rejected the State's arguments in that case that the petitioner's federal wiretap claim was barred because she had a full and fair opportunity to litigate her claim in the state court. Johnson-Howell v. McKune, 2000 WL 223561, at *3 n. 2 (stating "that is not the approach the Tenth Circuit has decided to apply to nonconstitutional, nonjurisdictional errors" and citing Knox, 34 F.3d at 968).

Applying the Hill inquiry to the instant case, the undersigned finds that Petitioner fails to show that a fundamental defect occurred by the admission of the audiotape. The record demonstrates that nearly all of the information in the audiotape was also presented in the trial testimony of Agent Snowden. Although Petitioner challenges the admission of the audiotape on the ground that he was denied his right to confront the confidential informant, no miscarriage of justice occurred by Stafford's absence at trial because Agent Snowden testified that he was present at the time of the first call, recorded the call with Mr. Stafford's consent and Snowden testified at trial as to that conversation.

Petitioner challenges the OCCA's decision that the audiotape was admissible based on the consent exception contained in the Wire Act. The undersigned finds that Petitioner has not rebutted the OCCA's factual finding with respect to the credibility of a post-trial affidavit submitted by Stafford by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). In any event, as discussed infra with respect to the sufficiency of the evidence in Ground Nine, the evidence of Petitioner's guilt was overwhelming based on Agent Snowden's testimony at trial that he personally conducted the drug transaction with Petitioner. As in Hill, Petitioner's allegations concerning the admission of the audiotape lack "aggravating circumstances" rendering "`the need for the remedy afford by the writ of habeas corpus . . . apparent." Hill, 368 U.S. at 428 (quoting Bowen v. Johnston, 306 U.S. 19, 27 (1939)).

Therefore, the undersigned finds that the admission of the audiotape recording did not result in a complete miscarriage of justice and was not inconsistent with the rudimentary demands of fair procedure. Hill, 368 U.S. at 428; Knox, 964 F.3d at 968. Accordingly, Petitioner's Wire Act claim is not cognizable under the standards for federal habeas review and the OCCA's rejection of this claim does not merit relief under 28 U.S.C. § 2254(a).

B. Alleged Violation of State Law

Petitioner also claims, as he did on direct appeal, that the tape recording should have been excluded under state law because there was an insufficient showing of authenticity and the State failed to establish an adequate chain of custody. Petitioner's Brief at 20 (citing Brewer v. State, 414 P.2d 559 (Okla.Crim.App. 1966)). Petitioner also alleges that the trial court erred by "speculating on the identity of the speaker on the tape as being Iranian origin." Id. at 18 (citing in camera hearing, Petitioner's Appendix at 28). See also Record, Motions Transcript dated February 22, 1999.

"Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights." Smallwood v. Gibson, 191 F.3d 1257, 1275 (10^th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). The state court's evidentiary rulings will not be disturbed unless Petitioner demonstrates an error that was "so grossly prejudicial it fatally infected the trial and denied [him] the fundamental fairness that is the essence of due process." Fox v. Ward, 200 F.3d 1286, 1296 (10^th Cir. 2000) (quotation marks and citation omitted).

With respect to the authenticity and chain of custody issues Petitioner raised on direct appeal, the OCCA found that these claims had been waived because no objection had been made at trial on this basis, and that in any event, Petitioner's claim that the tape may have been altered was "purely speculative," noting that at trial Agent Snowden "properly identified all of the voices on the recordings, testified that the tapes were true and accurate copies of the records that were made, testified that the tape of the drug transaction accurately recorded what was said, and established an adequate chain of custody regarding the tape." Response, Ex. D at 6 and n. 14. In Oklahoma, "[a]ny weakness in chain of custody goes to the weight to be given to the evidence and does not prevent admissibility." Frederick v. State, 37 P.3d 908, 937 (Okla.Crim.App. 2001). "The purpose of the chain of custody rule [in Oklahoma] is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed." McCarty v. State, 904 P.2d 110, 126 (Okla.Crim.App. 1995) (quotation and citation omitted).

As previously discussed in connection with the alleged violation of the Wire Act, there is nothing in the record to suggest that the admission of the audiotape rendered Petitioner's trial fundamentally unfair. The OCCA's findings as to authenticity and chain of custody are consistent with the trial record. At trial Agent Snowden testified that the audiotape was a true and accurate recording of the telephone conversation between Stafford and Petitioner on March 28, 1997, during which Snowden was present, that the tape was an accurate copy of the actual transaction of the arranged drug buy on the same date and that he had given a copy of the recording of both conversations to the district attorney's office. Record, Tr. at 59. Nothing in Snowden's testimony creates any inference that the audiotape admitted into evidence at Petitioner's trial had been altered or tampered with prior to trial. Additionally, Petitioner does not allege or demonstrate how the trial court's comments during an in camera hearing denied him a fair trial. Petitioner has not established that the admission of the audiotape rendered his trial so fundamentally unfair as to constitute a denial of due process. Petitioner, therefore, is not entitled to habeas relief on this claim of state law error.

VIII. Preliminary Hearing

In Ground Eight Petitioner alleges, as he did on direct appeal, that the trial court lacked jurisdiction to sentence him because a structural constitutional error occurred at his preliminary hearing. Petitioner's Brief at 22-24. Specifically, Petitioner claims that just prior to the preliminary hearing the trial court appointed standby counsel over Petitioner's objection and subsequently ordered Petitioner removed from the courtroom, denying Petitioner his Sixth Amendment right to competent counsel and his right to cross-examine witnesses at the preliminary hearing. Id.

The Sixth Amendment provides that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. The right to counsel under the Sixth Amendment extends to the preliminary hearing. Coleman v. Alabama, 399 U.S. 1,9 (1970). However, like other fundamental trial rights, the right to assistance of counsel may be waived. See Johnson v. Zerbst, 304 U.S. 458, 463 (1938). "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id. at 464. The Supreme Court has further determined that a waiver analysis must be pragmatic and directed to the "particular stage of the proceedings in question":

[W]e have taken a more pragmatic approach to the waiver question — asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage — to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.

Patterson v. Illinois, 487 U.S. 285, 298 (1988). When collaterally attacked, "the burden of proof rests upon [the petitioner] to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel." Johnson, 304 U.S. at 468-69.

In considering this claim on direct appeal, the OCCA made the following specific findings:

[Petitioner] requested and was granted multiple continuances in order to obtain counsel, yet failed to do so. When his preliminary hearing was finally held, he again appeared without counsel and was persistently rude and disrespectful to the trial court and everyone else present. He refused the trial court's offers to help him obtain appointed counsel and insisted that he did not want assistance from the standby counsel appointed by the court. In addition, [Petitioner] refused to allow other people to speak or the hearing to proceed, even after he was warned that he was going to be removed. When [Petitioner] was ultimately held in contempt and then removed from the courtroom, standby counsel was instructed not to act on his behalf.

Response, Ex. D at 7. The OCCA recognized that a defendant has a right to counsel at a preliminary hearing but held that Petitioner's "failure to obtain counsel, in conjunction with his rejection of the court's attempts to provide him with counsel, constituted a waiver of his right to representation." Id. In finding that Petitioner waived counsel at the preliminary hearing, the OCCA cited Colbert v. State, 714 P.2d 209 (Okla.Crim.App. 1975). Id. In that case, the OCCA cited the United States Supreme Court case of Gideon v. Wainwright, 372 U.S. 335 (1963),²³ for the proposition that a person charged with a felony in state court, including an indigent defendant, has an unconditional and absolute right to an attorney, and further cited Johnson v. Zerbst, supra, for the proposition that the right may be waived if done knowingly and voluntarily.

23 In Gideon, the Supreme Court held that the Sixth Amendment to the federal Constitution providing that in all criminal prosecutions the accused shall enjoy right to assistance of counsel for his defense is made obligatory on the states by the Fourteenth Amendment and that an indigent defendant in a criminal prosecution in a state court has the right to have counsel appointed for him. Gideon, at 372 U.S. at 343-45.

The undersigned finds that the OCCA's decision, as well as the case which it cited, Colbert, applies the standard for voluntary, knowing, and intelligent waiver of counsel set out by the Supreme Court in Johnson v. Zerbst, supra. Additionally, the OCCA's factual findings concerning Petitioner's refusal to obtain private counsel for the continued preliminary hearing and his refusal to allow the trial court to complete the necessary form in order to appoint standby counsel may be presumed correct. 28 U.S.C. § 2254(e)(1). Although Petitioner claims that he "repeatedly informed the court that he wanted counsel to represent him at the preliminary hearing," Petitioner's Brief at 22, he fails to rebut the OCCA's factual findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Rather, Petitioner's claim is inconsistent with the state court record.²⁴ A review of the transcript of the preliminary hearing demonstrates that: 1) despite the trial court's order to appear at the postponed preliminary hearing with retained counsel after continuances of the hearing for that purposes, Petitioner appeared without counsel and repeatedly demanded that the trial court order the money confiscated from Petitioner upon his arrest be released so that he could retain counsel of his choice; 2) the trial court repeatedly attempted to determine Petitioner's indigency in order to appoint counsel, but Petitioner refused to participate; 3) Petitioner rejected the appointment of the public defender as standby counsel; 4) Petitioner expressly stated that he did not want to proceed pro se; 5) as the trial court attempted to resolve the issue of Petitioner's representation, Petitioner continually interrupted and refused to cooperate with the court; 6) thereafter Petitioner stated "Get me out of here"; 7) Petitioner was removed from the courtroom; and 8) the proceeding was held outside of Petitioner's presence. Record, Preliminary Hearing Transcript at 37-46.

24 See Webb v. Crouse, 359 F.2d 394, 395 (10^th Cir. 1966) ("The District Judge was not required to accept the statements made by [the habeas] [p]etitioner when they were obviously contrary to the written record before the Court. . . .") (citation omitted); Fillmore v. Crisp, 480 F.Supp 310, 312 (W.D. Okla. 1978) ("This court is not required to accept [the habeas petitioner's] allegations to the extent that they are contradicted or in conflict with the facts as shown by the files and records of the case.").

Petitioner fails to show that he was unconstitutionally denied counsel at the preliminary hearing; rather, the record supports the OCCA's determination that Petitioner was bound over for trial after he knowingly and voluntarily waived his right to be represented by counsel during his preliminary hearing. See Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942) (describing a waiver of counsel as intelligent when the defendant "knows what he is doing and his choice is made with his eyes open"). Under the circumstances of this case, Petitioner has not demonstrated that the OCCA's application of the relevant Supreme Court law was unreasonable. Johnson v. Zerbst, 304 U.S. at 463-64. Therefore, the undersigned finds that the OCCA did not make a decision that was contrary to or an unreasonable application Supreme Court law.

Alternatively, even if the OCCA's determination that Petitioner waived his right to counsel at preliminary hearing was objectively unreasonable, Price v. Vincent, 538 U.S. at 641, any such error was harmless. In Coleman, supra, the Supreme Court held that the denial of counsel at preliminary hearing is subject to harmless error review. Coleman, 399 U.S. at 11.²⁵ In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal citation omitted). See also Herrera v. Lemaster, 301 F.3d 1192, 1197 (10^th Cir. 2002) ( en banc) (habeas court must apply harmless error analysis from Brecht in habeas proceedings); Willingham v. Mullin, 296 F.3d 917, 927 n. 4 (10^th Cir. 2002) (holding that the Brecht standard of harmlessness "still controls in post-AEDPA cases where, as here, there is no state court Chapman determination to defer to under [28 U.S.C.] § 2254(d)") (citations omitted).²⁶

25 In Coleman the Supreme Court remanded the case to the Alabama courts, stating that the denial of counsel during preliminary proceedings should be evaluated under the standard of Chapman v. California, 386 U.S. 18 (1967), a case involving direct (not habeas) review of a state criminal conviction. See Coleman, 399 U.S. at 11. Under Chapman, an alleged error can be deemed harmless if it is "harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24. In Brecht v. Abrahamson, however, the Supreme Court announced that, on habeas review, harmless error analysis was to be guided by a stricter standard: whether the error "`had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (internal citation omitted).

26 Both the Tenth Circuit Court of Appeals and the OCCA have applied the Brecht harmless error standard to claims similar to the one at issue here. See Tisthammer v. Williams, No. 00-2302, 2002 WL 31002856 (10^th Cir. Sept. 6, 2002) (applying Brecht harmless error standard to state habeas petitioner's claim of denial of counsel at grand jury hearing, where claim was not adjudicated on the merits by the state courts); DiCesare v. Cowley, No. 96-5092, 1996 WL 594276 (10^th Cir. Oct. 17, 1996) (applying a harmless error analysis to Oklahoma petitioner's claim of lack of counsel at preliminary hearing) (citing Coleman, 399 U.S. at 10-11); see also Norton v. State, 43 P.3d 404, 408 (Okla.Crim.App. 2002) (holding denial of counsel at preliminary hearing is subject to harmless error review).

In the instant case, Petitioner fails to show prejudice based on his lack of representation of counsel at the preliminary hearing. The evidence at the preliminary hearing consisted of the testimony of Agent Snowden who personally purchased the methamphetamine from Petitioner. Agent Snowden also testified at trial. The state court records show that Petitioner was represented by at least four different private counsel between the preliminary hearing and trial. Moreover, Petitioner's trial counsel had nearly six months before trial to investigate the case, to become familiar with Snowden's preliminary hearing testimony and to prepare for trial. Counsel moved for and received a hearing on the admissibility of the audiotape containing of the drug sale arrangement and the transaction. Additionally, the record is clear that at trial Petitioner's counsel thoroughly cross-examined Snowden regarding the tape recording and the actual drug transaction. Record, Tr. at 79-134 and 141-42; 142-159; 172-73. Finally, as discussed in connection with Ground Nine, infra, the evidence of Petitioner's guilt at trial was overwhelming. For these reasons, the undersigned finds that any error was harmless.

Under the circumstances of this case and based upon a review of the record, the undersigned finds that the OCCA's finding of waiver was objectively reasonable, and in any event, Petitioner's lack of counsel at the preliminary hearing did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Accordingly, it is recommended that relief be denied on Ground Eight.

IX. Sufficiency of the Evidence

Petitioner's ninth ground for relief is based on his claim that the evidence at trial was insufficient to support his distribution of methamphetamine conviction. Petitioner argues that his conviction is based only on the uncorroborated testimony of Agent Snowden who was "a biased and prejudicial witness who repeatedly perjured himself on cross examination." Petitioner's Brief at 25. According to Petitioner, his conviction cannot stand because it is based only on Agent Snowden's biased testimony and there is no independent evidence linking Petitioner with the methamphetamine. Id. The OCCA held that "the evidence presented at trial, particularly the testimony of Agent Snowden — to whom [Petitioner] directly sold the methamphetamine at issue — was clearly adequate to sustain his conviction under Jackson v. Virginia and Spuehler v. State." Response, Ex. D at 10 (footnote citations omitted).

Clearly established Supreme Court precedent provides that in reviewing the sufficiency of the evidence on a habeas corpus petition, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. The Court's review under this standard is "`sharply limited' and a court `faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Messer v. Roberts, 74 F.3d 1009, 1013 (10^th Cir. 1996)) (quoting Wright v. West, 505 U.S. 277, 296-97 (1992)).

An even more limited review is required by 28 U.S.C. § 2254(d). See Valdez v. Ward, 219 F.3d 1222, 1237 (10^th Cir. 2000). Where, as here, a habeas petitioner's sufficiency of the evidence challenge has already been decided on the merits in state court, a federal court may not grant habeas relief unless the result reached by the OCCA was contrary to or involved an unreasonable application of Jackson. See Torres v. Mullin, 317 F.3d 1145, 1151 (10^th Cir.), cert. denied, 540 U.S. 1035 (2003).²⁷ It is apparent that the OCCA relied on Jackson v. Virginia and state case law that clearly applies the Jackson v. Virginia standard of review. See Valdez v. Gibson, 219 F.3d 1222, 1238 (10^th Cir. 2000) (recognizing that Oklahoma case law follows the Jackson v. Virginia standard for reviewing sufficiency of the evidence claims). The OCCA clearly applied the appropriate standard set out by the Supreme Court for determining the sufficiency of the evidence and therefore, the decision of the OCCA is not contrary to Supreme Court law. The state court's decision is therefore reviewed to determine whether the conclusion that the evidence was sufficient constituted an unreasonable application of Jackson v. Virginia.

27 The Tenth Circuit Court of Appeals "has not yet settled whether a challenge to the sufficiency of the evidence on a habeas petition is a question of fact or a question of law, and therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2) applies." Turrentine v. Mullin, 390 F.3d 1181, 1197 (10^th Cir. 2004) (citing Moore v. Gibson, 195 F.3d 1152, 1176-1177 (10^th Cir. 1999) (surveying a split in case law) and Torres v. Mullin, 317 F.3d 1145, 1151 (10^th Cir. 2003 (noting that the issue remains unsettled)). In this case, as in Turrentine, Petitioner is not entitled to relief regardless of whether subsection (d)(1) or subsection (d)(2) is applied.

In considering whether the OCCA's decision was an unreasonable application of federal law, this Court must consider the substantive elements of the crime as set forth under Oklahoma law. Jackson, 443 U.S. at 324 n. 16; Rael v. Sullivan, 918 F.2d 874, 875-76 (10^th Cir. 1990). Under Oklahoma law, the essential elements of distribution of a illegal substance are (1) wilfully, (2) delivering, (3) a controlled dangerous substance. Okla. Stat. tit. 63, § 2-401(A); Oklahoma Uniform Jury Instructions — Criminal (2nd ed.), No. CR 6-2. Delivery is defined as "the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance, whether or not there is an agency relationship." Okla. Stat. tit. 63, § 2-101(10).

The undersigned finds that there was more than sufficient evidence presented at trial from which a reasonable jury could have found Petitioner guilty of distributing methamphetamine. At trial Agent Snowden testified that in his capacity as an OBN agent, he was investigating the manufacture of methamphetamine in the Oklahoma City area. Record, Tr. at 32. Snowden testified that on March 28, 1997, he made contact with a confidential informant, Harvey Stafford, Jr., attached a tape recorder to his own cellular phone and taped the call made by the informant to Petitioner. Id. at 33. Snowden testified that he overheard the conversation as the informant arranged a time later that day to buy methamphetamine from Petitioner. Id. at 35-36. Snowden testified that Petitioner advised the informant to come alone. Id. at 36. Snowden further testified that after the arrangement for the sale, he searched the informant and his vehicle, equipped himself with an electronic transmitter and a small tape recorder, and obtained $600.00 in cash. Id. at 45-46. Snowden testified that he and Stafford drove to 1915 Linwood Avenue, honked the horn until Petitioner exited a building behind the chainlink fence surrounding the property, and approached the fence with Stafford. Id. at 47-48. Snowden testified that Petitioner was initially upset that Stafford brought another person with him, but after Snowden conversed with Petitioner, and saw Snowden's money, he agreed to sell Snowden a half an ounce of methamphetamine for $600.00. Id. at 48-50. Snowden testified that Petitioner then walked away, entered a building, returned within two to three minutes and handed Snowden eight small plastic baggies containing methamphetamine in exchange for the money. Id. at 50-51. Snowden identified Petitioner in court. Id. at 52. State's Exhibt 1, the audiotape recording of the two conversations with Petitioner was played for the jury, and Snowden testified as to the statements and actions of Stafford, Snowden and Petitioner during the transaction. Id. at 67-72.

Another OBN agent, John Guyton, testified that he served as a surveillance agent during the operation on March 28, 1997. Record, Tr. at 175. Guyton testified that he followed Agent Snowden and Stafford to the location on Linwood Avenue and parked approximately one block west of the location, where he observed Snowden and Stafford enter the property. Id. at 176-77. Guyton testified that within a few minutes he drove by the location and observed Snowden, Stafford and Petitioner talking, and he monitored the body transmitter being worn by Snowden. Id. at 177. The substance obtained from Petitioner was determined to be methamphetamine weighing 13.1 grams, or just under one half of an ounce. Id. at 192-93.

Petitioner's allegation that Agent Snowden's testimony was biased and uncorroborated goes to the credibility of the witnesses presented by the State. "So long as the testimony is not incredible on its face and is otherwise capable of establishing guilt beyond a reasonable doubt, it remains solely within the province of the jury to determine the credibility of each witness." Foster v. Ward, 182 F.3d 1177, 1193 (10^th Cir. 1999) (internal quotations omitted). Viewing the facts in the light most favorable to the prosecution and according the deference required by federal law to jury credibility determinations, the undersigned finds ample evidence to support the jury's verdict. Therefore, the undersigned concludes that the OCCA's decision with respect to this claim was not unreasonable. Accordingly, it is recommended that habeas relief be denied as to Ground Nine.

X. Other Crimes Evidence

In Ground Ten, Petitioner alleges that although his case involved a single charge of illegal drug distribution the prosecution was improperly allowed to admit "other crimes" evidence. Specifically, Petitioner alleges that he was prejudiced by Agent Snowden's testimony "that Petitioner was under investigation by other agency and other divisions of the OBN." Petitioner's Brief at 26. Petitioner contends that he was prejudiced by this testimony which made him appear to be participating in a larger criminal enterprise. Id.

At trial, the prosecutor inquired of Agent Snowden: "And could you tell the jury, please, why it was that [Petitioner] was not arrested following that transaction on March 28, 1997?" Record, Tr. at 53. In response, Snowden replied: "At the time of this transaction unbeknownst to me another agent in our Tulsa office had an ongoing investigation in which [Petitioner] was involved." Record, Tr. at 54. Petitioner initially objected on the grounds of other crimes evidence, but then withdrew his objection when the trial court pointed out in a sidebar conference that Petitioner had opened the door to such evidence during his opening statement. Id. ²⁸ Snowden's remaining direct examination testimony regarding another investigation was limited and brief. Record, Tr. at 55.²⁹ On cross-examination, defense counsel brought up the subject of the other investigation and questioned Snowden in detail regarding the Tulsa investigation and as whether Snowden's opinion of Petitioner's role as a "peripheral player" in the Tulsa investigation had changed since the time of his deposition. Record, Tr. at 92, 132-34. The trial court overruled Petitioner's subsequent objection to the prosecutor's questioning of Snowden during redirect examination concerning Snowden's change of opinion of Petitioner's role in the investigation in Tulsa on the basis of other crimes evidence. Record, Tr. at 147, 150. The prosecutor's continued redirect examination of Snowden as to what additional information changed the agent's opinion of Petitioner's role in the Tulsa investigation was objected to by Petitioner on hearsay grounds. The trial court overruled the objection, noting that Petitioner had "opened the door" to such evidence. Record, Tr. at 151-52. Snowden then testified that after his deposition, he obtained information indicating that Petitioner purchased a large quantity of precursor ingredients from an undercover agent in a Tulsa chemical company and offered to let the agent distribute methamphetamine for him. Record, Tr. at 155. At this point, defense counsel moved for mistrial, but the trial court overruled the motion. Id.

28 During opening statement, defense counsel stated that "the evidence will be there is no rhyme or reason" that Petitioner was not arrested until four months after the March 28, 1997, drug transaction. Tr. at 18.

29 In response to the prosecutor's followup inquiry as to why Petitioner was not immediately arrested following the March 28, 1997, drug transaction, Snowden stated the following:

First and foremost we had hoped to make another purchase of methamphetamine from Mr. Mehdipour. When it was discovered that there was an existing investigation out of our Tulsa office we backed away from that because there was another agent undercover and because of the safety involved in possibly exposing that agent's cover.

Tr. at 55. The prosecutor made no further inquiry regarding the Tulsa investigation during direct examination of Agent Snowden.

On direct appeal the OCCA found no error in the denial of Petitioner's motion for mistrial and made the following specific findings:

[Petitioner's] counsel opened the door to Agent Snowden's initial, general reference to the Tulsa investigation, by arguing during his opening statements that Snowden had no reason for delaying [Petitioner's] arrest until four months after the original purchase. Subsequent testimony by Snowden regarding the Tulsa investigation, much of it elicited by defense counsel remained general and not overly prejudicial, up until the point that defense counsel attempted to get Snowden to acknowledge that he considered [Petitioner] to be only a `peripheral player' in the Tulsa matter.

When Snowden would not agree to this characterization, defense counsel attempted to impeach him with his prior deposition testimony. This attempted impeachment further opened the door to Snowden's subsequent testimony about the reason that he changed his opinion. It was this questioning that contained the most damaging and specific testimony about what [Petitioner] allegedly did at Branard Chemical.

Response, Ex. D at 11. Additionally, the OCCA found the challenged testimony did not constitute hearsay because it was not offered for the truth of the matter asserted, but to re-establish Agent Snowden's credibility. Id. The OCCA also found that the testimony first prompted on cross-examination did not amount to an "evidentiary harpoon." Id.

When, as here, no particular constitutional guarantees are implicated, evidentiary objections raise questions of state law and, therefore, are cognizable on habeas only if the alleged error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process. See Revilla v. Gibson, 283 F.3d 1203, 1212 (10^th Cir. 2002). "Because a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor [the court] must tread gingerly and exercise considerable self-restraint." Duckett v. Mullin, 306 F.3d 982, 999 (10^th Cir. 2002) (quotation marks, alterations, and citation omitted), cert. denied, 538 U.S. 1004 (2003).

The OCCA's factual findings regarding defense counsel's initial elicitation of testimony regarding the reason Petitioner was not immediately arrested and the other investigation involving Petitioner are presumed correct. 28 U.S.C. 2254(e)(1). The record supports the OCCA's findings and Petitioner fails to offer clear and convincing evidence in rebuttal. Moreover, the Tenth Circuit has held that habeas relief is not available when a defendant's request for relief is based on an error he invited. See Parker v. Champion, 148 F.3d 1219, 1221-22 (10^th Cir. 1998). Oklahoma courts follow the "well established principle that a defendant may not complain of error which he has invited, and that reversal cannot be predicated upon such error." Pierce v. State, 786 P.2d 1255, 1259 (Okla.Crim.App. 1990). See also Gundy v. United States, 728 F.2d 484, 488 (10^thCir. 1984) (holding "an appellant may not complain on appeal of errors which he himself induced or invited"). Under Oklahoma law, the invited error doctrine applies when a defendant elicits otherwise inadmissible evidence from a witness during cross-examination. See Washington v. State, 989 P.2d 960, 973 (Okla.Crim.App. 1999).

Here, because Petitioner's questions to Agent Snowden concerning the Tulsa investigation elicited the responses at issue, the trial court's admission of the answers did not affect the fundamental fairness of the trial. See Parker, 148 F.3d at 1221-22. Moreover, the jury was given a limiting instruction stating that evidence of an offense other than the one charged in the information could not be considered in its determination of guilt or innocence, but was admitted only to explain a witness' prior inconsistent statement. Record, O.R. at 601. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) ("A jury is presumed to follow its instructions."). Finally, as discussed in connection with Ground Nine, there was more than ample evidence to support the jury's finding that Petitioner was guilty of distributing methamphetamine. Accordingly, the undersigned finds that Petitioner has failed to show that the admission of other crimes evidence rendered his trial fundamentally unfair. It is therefore recommended that habeas relief be denied on Ground Ten.

XI. Alleged Bias of Trial Court

In Ground Eleven, Petitioner alleges that his trial judge was biased. Petitioner's Brief at 28. The OCCA found no evidence of judicial bias. Response, Ex. D at 12 (citing Welch v. State, 2 P.3d 356 (Okla.Crim.App. 2000), where that Court held that a defendant asserting a claim of bias "must show that the trial court harbored prejudice against him which materially affected his rights at trial and that he was prejudiced by the trial court's actions").

The Fourteenth Amendment's Due Process Clause requires a fair trial in a fair tribunal. Withrow v. Larkin, 421 U.S. 35, 46 (1975). Further, a trial must proceed before a judge with no actual bias against the defendant or interest in the outcome of his particular case. Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (allowing discovery in habeas case where petitioner's trial judge had later been convicted of taking bribes in criminal cases); In re Murchison, 349 U.S. 133, 138-39 (1955) (finding denial of due process where trial judge had previously served as a one-man "judge-grand jury" in the contempt case). "The test for assessing whether the likelihood of or appearance of bias is so great as to be constitutionally intolerable is whether `the judge [is] unable to hold the balance between vindicating the interests of the court and the interests of the accused.'" Nichols v. Sullivan, 867 F.2d 1250, 1254 (10^th Cir. 1989) (quoting Taylor v. Hayes, 418 U.S. 488, 501 (1974)).

Petitioner's claim of judicial bias is conclusory and without supporting factual allegations. Petitioner points only to the adverse rulings the trial court made during the course of trial, such as admission of the tape recording, allowing the admission of hearsay and evidence of other crimes, limiting defense counsel's impeachment Agent Snowden, denying Petitioner's collateral estoppel motion and motion for mistrial, and adverse rulings on defense counsel's objections.³⁰ However, the fact that a judge has made unfavorable rulings does not provide a basis for an allegation of bias. Liteky v. United States, 510 U.S. 540, 550-551 (1994); United States v. Pearson, 203 F.3d 1243, 1277 (10^thCir. 2000) ("adverse rulings cannot in themselves form the appropriate ground for disqualification"); Starr v. Wyoming Department of Corrections State Penitentiary Warden, No. 96-8033, 1997 WL 57169, * 4 (10^th Cir. Feb. 12, 1997) ("[a] dverse rulings alone do not establish judicial bias. . . .").

30 To the extent Petitioner refers to several pretrial hearings or rulings conducted by judges other than the trial judge as support for his claim of bias, such accusations are irrelevant to the issue of bias on the part of the trial judge raised by Petitioner. See Petitioner's Brief at 28.

The undersigned finds that Petitioner's claim of judicial bias is without merit. The record reflects no factual basis for Petitioner's claim of judicial bias or prejudice; rather, Petitioner has presented only his bare allegation that the trial judge treated him unfairly. A review of the record demonstrates that Petitioner got a "fair trial in a fair tribunal," Larkin, 421 U.S. at 46, and that the state trial judge did not have an actual bias against the defendant or interest in the outcome of the case, Murchison, 349 U.S. at 136. Therefore, the decision by the OCCA regarding this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the state court decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. As a result, Petitioner is not entitled to habeas relief on this ground.

XII. Actual Innocence/Vindictive Prosecution

In Ground Twelve Petitioner alleges that the prosecution manufactured the charge and obstructed justice, violated Petitioner's right to due process, was biased, and used improper testimony of a State's witness in violation of the Fifth and Fourteenth Amendments. Petitioner's Brief at 30. Petitioner also alleges that he is "actually innocent" of the offense for which he was convicted, and that he was elsewhere on the day the drug transaction took place. Id. In rejecting this claim, the OCCA held that "none of `evidence' offered by [Petitioner], including any evidence in the documents attached to his numerous filings in this Court, even remotely suggests that he is `actually innocent' or that he was vindictively prosecuted." Response, Ex. D at 12.

Initially, the undersigned notes that freestanding claims of actual innocence are generally not constitutional claims and do not provide a basis for federal habeas relief unless grounded in or connected to an independent constitutional claim. See Herrera v. Collins, 506 U.S. 390 (1993); LaFevers v. Gibson, 238 F.3d 1263, 1265 n. 4 (10^th Cir. 2001) (assertion of actual innocence "does not, standing alone, support the granting of the writ of habeas corpus"); Sellers v. Ward, 135 F.3d 1333, 1338 (10^th Cir. 1998). While innocence may be material when a petitioner is subject to threshold obstacles, such as the statute of limitations³¹ or procedural default,³² innocence alone does not justify the issuance of a writ of habeas corpus. Schlup v. Delo, 513 U.S. 298, 315 (1995) (holding that a habeas petitioner's "claim of innocence does not by itself provide a basis for relief"). Here, Petitioner's claim of "actual innocence" is supported only by allegations that he was elsewhere during the day of March 28, 1997. However, the undersigned has previously found that there was more than ample evidence to support the jury's finding that Petitioner was guilty of distribution of controlled dangerous substance (methamphetamine), and Petitioner fails to present any evidence to undermine confidence in the jury's verdict. Moreover, as found in this Report and Recommendation, no constitutional error occurred at Petitioner's trial. Accordingly, the undersigned finds Petitioner's theory of actual innocence does not raise a cognizable claim for federal habeas relief.

31 See Gibson v. Klinger, 232 F.3d 799, 808 (10^th Cir. 2000).

32 See Brecheen v. Reynolds, 41 F.3d 1343, 1357 (10^th Cir. 1994).

Additionally, Petitioner fails to show that he is entitled to habeas relief with respect to the OCCA's rejection of his claim of prosecutorial vindictiveness. To establish a claim of vindictive prosecution a petitioner must prove either "(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness." United States v. Lampley, 127 F.3d 1231, 1245 (10^th Cir. 1997) (citing United States v. Goodwin, 457 U.S. 368, 376, 380-381, 384 n. 19 (1982)). "In determining whether the government has engaged in prosecutorial vindictiveness, [the] court must determine whether the prosecution engaged in conduct that would not have occurred but for the prosecution's desire to punish the defendant for exercising a specific legal right." United States v. Sarracino, 340 F.3d 1148, 1178 (10^th Cir. 2003).

Here, Petitioner points to no evidence in support of his claim of vindictive prosecution. Petitioner's only support for this claim is a conclusory assertion that the charge against him was "manufactured by the state in animosity by the same district attorney that illegally prosecuted [P]etitioner's brother." Petitioner's Brief at 30. As on direct appeal, Petitioner provides no facts or evidence to support a claim of either actual vindictiveness or the realistic likelihood of vindictiveness that translates to a presumption of vindictive behavior.³³ Moreover, the undersigned finds no hint of evidence in the state court record to support the allegation that the charge was "fabricated" or "false." Additionally, Petitioner does not specifically indicate how the alleged but unidentified conduct prejudiced his trial. Accordingly, the undersigned finds that Petitioner fails to show how the OCCA's decision with respect to his claim of prosecutorial vindictiveness is contrary to, or an unreasonable, application of, clearly established Supreme Court jurisprudence. Accordingly, Petitioner is not entitled to habeas relief in Ground Twelve.

33 To support his claim of vindictive prosecution, Petitioner challenges the prosecutor's questioning of Agent Snowden, as to why State's Exhibit 2, the evidence envelope containing the methamphetamine purchased from Petitioner, had another name marked out on the envelope. In response to this inquiry, Agent Snowden testified that he had mistakenly written Petitioner's brother's name first, then had crossed it out, while he was engaged in a discussion with someone in his office who mentioned Petitioner's brother's name, who was incarcerated at the time of the drug transaction. Record, Tr. at 107-08, 157. The prosecutor established that the evidence was related only to Petitioner's case and the illegal drugs purchased on March 28, 1997. Record, Tr. at 109. Nothing in this testimony reflects that Petitioner was improperly charged or convicted of the March 1997 drug sale.

XIII. Trial Court's Failure to Hold a Franks Hearing

In his final ground for relief, Petitioner contends that his Fifth, Sixth and Fourteenth Amendment rights were violated because the trial court failed to hold an evidentiary hearing as contemplated Franks v. Delaware, 438 U.S. 154, 171-172 (1978), to ascertain the veracity of the statements made by Agent Snowden in the affidavit executed in connection with the civil forfeiture action. Petitioner's Brief at 31.³⁴

34 In support of his claim, Petitioner has submitted a copy of an affidavit executed by Agent Snowden on October 9, 1997, in relation to the civil forfeiture action in which Snowden averred that he seized the currency at issue on July 31, 1997, as currency furnished or intended to be furnished in exchange for illegal drugs. See Petitioner's Appendix, Ex. 6.

In Franks, the Supreme Court held, "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks, 438 U.S. at 155-156. On direct appeal, the OCCA rejected Petitioner's claim, finding that the holding in Franks was "totally irrelevant to the admission of evidence in [Petitioner's] criminal case." Response, Ex. D at 13. In so determining, the OCCA stated:

[Petitioner] was arrested without a warrant, and no search warrant was issued in his criminal case. The affidavit that [Petitioner] asserts is false was filed in relation to the seizure of his money at the time of his arrest. This arrest and seizure did not produce any evidence regarding [Petitioner's] earlier drug sale to Snowden. Hence there was no reason to conduct a Franks hearing in this case.

Id.

The undersigned agrees with the OCCA's finding. As Petitioner acknowledges in Ground Two, he was arrested without a warrant on July 31, 1997, by Agent Snowden, to whom Petitioner had sold the methamphetamine on March 28, 1997. Record, O.R. at 969-7; Tr. 55. Probable cause for Petitioner's arrest existed not on the basis of a warrant supported by an affidavit executed by Agent Snowden but based on Agent Snowden's arranged drug buy on March 28, 1997, which he personally transacted with Petitioner. What Petitioner's arguments concerning warrant and Franks hearing requirements ignore is that his case involves one of the well-established exceptions to the warrant requirement: a warrantless arrest for an offense committed in the presence of police officers. The Supreme Court has approved and applied "the ancient common-law rule that a peace officer [is] permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there [is] reasonable ground for making the arrest." United States v. Watson, 423 U.S. 411, 418 (1976). The undersigned finds that Petitioner makes no showing that the OCCA's determination on this issue was contrary to or an unreasonable application of Supreme Court law. Accordingly, the undersigned recommends that habeas relief be denied in Ground Thirteen.

RECOMMENDATION

For these reasons, it is the recommendation of the undersigned Magistrate Judge that the petition for writ of habeas corpus be denied. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by the 30th day of June, 2005, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10^th Cir. 1991). This Report and Recommendation disposes of the issues referred to the undersigned Magistrate Judge in the captioned matter.