                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 27 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 JOSEPH ANGELO DICESARE,

           Petitioner-Appellant,
 v.                                                       No. 00-7006
 LINDA SNEED; ATTORNEY                              (D.C. No. 97-CV-487-S)
 GENERAL OF THE STATE OF                                   (E.D.Okl.)
 OKLAHOMA,

           Respondent-Appellee.




                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Joseph DiCesare appeals the district court’s denial of his 28 U.S.C. § 2254



       This order and judgment is not binding precedent, except under the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

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petition for habeas corpus relief. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291, deny a certificate of appealability, and dismiss the appeal.

                                           I.

      DiCesare was convicted in 1991 of cruelty to animals, in violation of Okla.

Stat. tit. 21, § 1685 (1981), and sentenced to five years in prison and a $500 fine.

DiCesare appealed his conviction to the Oklahoma Court of Criminal Appeals

alleging (1) he was denied his right to a speedy trial, (2) the trial court erred in

admitting testimony of Deputy Cagle, (3) the trial court erred in denying his

motion to suppress because the horses were illegally seized in violation of the

Fourth Amendment, (4) the photographs of horses should have been excluded as

fruit of the poisonous tree, and (5) the trial court erred in denying his motion to

dismiss because he was not brought to trial in the next term of court. The

Oklahoma Court of Criminal Appeals summarily affirmed DiCesare’s conviction.

      DiCesare then filed a petition in state district court for post-conviction

relief, which the court denied. The Oklahoma Court of Criminal Appeals

remanded the case to the district court for findings of fact and conclusions of law

on the issue of ineffectiveness of counsel. On remand DiCesare claimed he

received ineffective assistance of counsel because his attorney: (1) failed to

subpoena feed store owners to testify that DiCesare’s father purchased feed for

the horses, (2) failed to subpoena feed store owners for receipts for feed, (3)


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failed to adequately investigate, (4) failed to introduce evidence of a 110-acre

ranch DiCesare had at his disposal, (5) failed to subpoena witnesses who sold hay

to DiCesare or his father, (6) failed to introduce evidence of the age of the

horses, (7) failed to introduce evidence of water available to the horses, (8) failed

to investigate and introduce evidence of reports that a neighbor shot the horses,

(9) failed to acquire photographs of healthy horses, (10) failed to remove two

jurors who owned or operated feed stores or to call them as witnesses, and (11)

failed to object to the jury instruction concerning punishment alternatives. The

district court entered findings and conclusions and again denied DiCesare post-

conviction relief. The district court concluded DiCesare failed to show either

error or prejudice from the first ten alleged errors. The district court agreed that

counsel erred in not objecting to the punishment jury instruction and modified

DiCesare’s sentence by striking the $500 fine. The Oklahoma Court of Criminal

Appeals affirmed the denial of post-conviction relief, concluding DiCesare

waived the issues not raised in his direct appeal and did not provide sufficient

reasons to overcome this procedural bar. The court concluded none of

DiCesare’s allegations constituted errors so serious as to deny him

constitutionally guaranteed counsel and noted DiCesare did not establish the

result at trial would have been different had the alleged errors not occurred.

      In August 1997, DiCesare filed a 28 U.S.C. § 2254 petition for habeas


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corpus relief in federal district court. DiCesare alleged (1) his claims were not

procedurally barred because of ineffective assistance of appellate counsel; (2) his

trial counsel failed to investigate and put on a proper defense; (3) his trial

counsel failed to investigate whether the prosecutor withheld exculpatory

evidence (pictures of healthy horses and inventory lists); (4) his trial counsel

failed to argue on direct appeal that the sheriff’s department violated his Fourth,

Sixth, and Fourteenth Amendment rights by seizing the horses; (5) his trial

counsel failed to raise on direct appeal that his Sixth and Fourteenth Amendment

rights to a fair trial were violated when the prosecutor engaged in prosecutorial

misconduct while examining a witness; (6) his trial counsel failed to raise on

direct appeal that his Fifth and Fourteenth Amendment rights were violated when

the trial court failed to instruct the jury on the effect of his decision to not enter a

plea; and (7) his trial counsel failed to raise on direct appeal that his Fifth,

Eighth, and Fourteenth Amendment rights were violated when the trial court

erroneously instructed the jury on punishment. The magistrate concluded that (1)

DiCesare’s assertion that his claims were not procedurally barred was moot in

light of the state agreeing and addressing the issues on the merits; (2) his claims

of counsel’s failure to put on a defense were thoroughly examined at the post-

conviction relief evidentiary hearing and the state district court’s analysis was not

contrary to federal law or based on an unreasonable application of the facts; (3)


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the photographs of healthy horses were not material to his defense; (4) his Fourth

Amendment claim was raised and rejected in his direct appeal; (5) the trial court

did not abuse its discretion in concluding there was no prosecutorial misconduct

and no manifest prejudice; (6) there was no error in the jury instructions

concerning his decision to not enter a plea and he did not demonstrate a

reasonable probability of success with the issue on appeal; and (7) the modified

sentence withdrawing the fine was not outside statutory limits, so the issue of the

proper sentence was resolved. DiCesare objected to the magistrate’s report. The

district court adopted the magistrate’s report and recommendation and denied

DiCesare’s § 2254 petition, his application for a certificate of appealability, and

his request to proceed on appeal in forma pauperis.

                                         II.

      Section 2254(d) provides that a petitioner in the custody of a state court

shall not be granted habeas relief

      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim–(1) resulted
      in a decision that was contrary to, or involved an unreasonable
      application of, clearly established Federal law, as determined by the
      Supreme Court of the United States; or (2) resulted in a decision that
      was based on an unreasonable determination of the facts in light of
      the evidence presented in the State court proceeding.

See Williams v. Taylor , 120 S. Ct. 1495, 1506-08 (2000) (clarifying § 2254(d)

standard of review). DiCesare’s allegations center on claims of ineffective


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assistance of counsel, which we review de novo as mixed questions of law and

fact. See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). “To

prevail on a claim of ineffective assistance of counsel, a convicted defendant

‘must show that counsel’s representation fell below an objective standard of

reasonableness,’ . . . and that the deficient performance prejudiced the

defendant.” Id. (quoting Strickland v. Washington , 466 U.S. 668, 687-88

(1984)). “To establish prejudice, the defendant ‘must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’”    Id. (quoting Strickland , 466 U.S. at

694).

        On appeal DiCesare asserts the district court erred in denying his habeas

petition by (1) not considering his claim of ineffective assistance of counsel in

his post-conviction hearing, (2) concluding his counsel did not fail to investigate

the case, call witnesses, and present evidence that would have changed the result

at trial, (3) determining there was no error concerning exculpatory evidence, (4)

by resolving his Fourth Amendment search and seizure claim, (5) by not

considering his prosecutorial misconduct claim in conjunction with his failure to

present a defense claim, and (6) by not considering his plea jury instruction claim

on the merits.

        DiCesare contends the district court failed to address his argument that his


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counsel at the post-conviction evidentiary hearing was ineffective. DiCesare did

not raise this issue in his § 2254 petition, but raised it in his reply to the

government’s response to his petition. DiCesare argued that his attorney at his

post-conviction relief evidentiary hearing failed to investigate his claims. We

conclude that the district court’s failure to address the issue does not provide

DiCesare with grounds for relief because DiCesare would not be entitled to relief

on his claim that his counsel was ineffective at the post-conviction hearing. A

“[p]etitioner cannot successfully assert that his counsel was constitutionally

ineffective at the post-conviction stage because ‘[t]here is no constitutional right

to an attorney in state post-conviction proceedings.’”     Smallwood v. Gibson , 191

F.3d 1257, 1267 n.4 (10th Cir. 1999) (quoting      Coleman v. Thompson , 501 U.S.

722, 752 (1991)).

       As for DiCesare’s remaining claims, our review of the record shows no

error by either the state courts or the federal district court warranting federal

relief. The testimony at trial showed that twenty-seven of DiCesare’s horses

were severely malnourished and that it would have taken sixty to ninety days for

them to reach that condition. DiCesare has not shown that the actions he claims

his attorney should have taken would have changed the result at trial.




                                           III.

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      We DENY DiCesare a certificate of appealability and DISMISS the appeal.

The mandate shall issue forthwith.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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