                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    March 10, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT



 ROBERT EARL JACKSON,

                 Plaintiff-Appellant,                   No. 07-5133
          v.                                   Northern District of Oklahoma
 REGINALD HINES,                            (D.C. No. 04-CV-00195-CVE-FHM)

                 Defendant-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


      Robert Earl Jackson, a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A). Because we conclude that Mr. Jackson has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                   I. BACKGROUND

      Officer Tom Ford observed Mr. Jackson drive through a red light on the

evening of March 20, 2000, in Tulsa, Oklahoma. Officer Ford called for backup


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
and stopped Mr. Jackson to issue a traffic citation. As Officer Ford approached

Mr. Jackson’s vehicle, he noticed Mr. Jackson drop an object out of the driver’s

side window. After a backup officer, Steve Dickson, arrived, Officer Ford

retrieved the item. The two officers approached Mr. Jackson and asked about the

object, which turned out to be an eyeglasses case containing baggies of cocaine

and marijuana. Mr. Jackson stated that it did not belong to him. The officers

asked Mr. Jackson to exit his car so that they could place him under arrest. When

he stepped out of the car, however, Mr. Jackson pushed the officers out of the

way, grabbed the glasses case, and fled. After a short chase the officers caught

up with him. In the ensuing struggle, Mr. Jackson struck Officer Ford in the head

with his elbow and kicked Officer Dickson. After additional law enforcement

arrived to assist, Mr. Jackson was handcuffed and taken into custody.

      Mr. Jackson was arrested, charged, and convicted in state court by a jury of

two counts of assault and battery upon a police officer (Counts 1 and 2), and one

count of unlawful possession of a controlled drug (Count 3). Mr. Jackson, who

had been convicted of two prior felonies, was sentenced to two ten-year terms of

imprisonment on Counts 1 and 2 and to twelve years imprisonment on Count 3.

All sentences were to be served consecutively.

      Mr. Jackson appealed his convictions and sentence to the Oklahoma

Criminal Court of Appeals (OCCA), which denied relief. On his subsequent

application for post-conviction relief, the OCCA affirmed the state district court’s

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refusal to grant relief. Having exhausted his state remedies, Mr. Jackson filed a

petition for habeas corpus pursuant to 28 U.S.C. § 2254, making several claims of

error. The district court, in a thorough opinion, rejected all of Mr. Jackson’s

claims.

       In his application for a COA, Mr. Jackson sets forth the following grounds

for relief:

      1.      the sentence violated Mr. Jackson’s equal protection and due process
              rights;

      2.      trial counsel rendered ineffective assistance of counsel because he
              failed to expose police officers’ perjury;

      3.      appellate counsel rendered ineffective assistance because he failed to
              effectively argue that Mr. Jackson’s sentence should be modified;

      4.      trial counsel rendered ineffective assistance because he waived Mr.
              Jackson’s presence during a phase of trial and failed to argue the
              merits of a pro se motion written by Mr. Jackson;

      5.      Mr. Jackson’s conviction on two counts of assault and battery upon a
              police officer violated the Fifth Amendment’s prohibition against
              double jeopardy;

      6.      appellate counsel rendered ineffective assistance because he failed to
              challenge the jury instructions and the validity of a prior conviction;

      7.      trial counsel rendered ineffective assistance because he failed to
              investigate available defenses.




                                              -3-
                                  II. DISCUSSION

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      A. Procedural Bar (grounds 1 & 2)

      Mr. Jackson’s first and second grounds for relief are barred because he

failed to raise these issues on direct appeal to the Oklahoma Criminal Court of

Appeals (OCCA). A petitioner’s “failure to raise an issue . . . on direct appeal

imposes a procedural bar to habeas review,” unless he “can show both good cause

for failing to raise the issue earlier, and that the court’s failure to consider the

claim would result in actual prejudice to his defense” or “that failure to consider

the federal claims will result in a fundamental miscarriage of justice.” United

States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) (internal quotation marks

omitted). Good cause can be proven by “a showing that the factual or legal basis

for a claim was not reasonably available to counsel or that some interference by

                                           -4-
officials made compliance [with the procedural requirement] impracticable.”

Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal citations omitted).

      As his first ground for relief, Mr. Jackson claims that he was denied “equal

protection and due process because the trial judge’s sentencing policy was an

abuse of discretion where similarly situated defendants were granted relief.”

Petr.’s Br. at 4. Mr. Jackson claims that the trial judge gave consecutive

sentences to defendants who went to trial but gave concurrent sentences to those

who pled guilty. He raised this issue for the first time in his application for post-

conviction relief rather than on direct appeal. Mr. Jackson’s argument that his

failure to raise the issue earlier should be excused for cause is without merit. He

contends that the legal and factual basis of his claim was not reasonably available

to him sooner because he did not learn of the trial judge’s sentencing policy until

after direct appeal. This is belied by the procedural history of his direct appeal.

In his initial brief on direct appeal, he argued that the trial judge’s decision to run

his sentences consecutively was an abuse of discretion. Later, however, he filed a

motion to supplement his brief with evidence of the trial judge’s sentencing

policy, consisting of a then-recent OCCA opinion reversing a sentence by the

same trial judge on account of her policy of sentencing defendants who stood trial

to consecutive terms. Ezell v. Oklahoma, No. F-2001-637 (Okla. Crim. App. June

13, 2002). Although the OCCA opinion did not characterize this policy as a

constitutional error, but only as an abuse of discretion under Oklahoma law, it

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shows that the defendant was aware as of June 13, 2002 of the factual basis for

the claim he now presents under the Equal Protection and Due Process Clauses.

We also note that Mr. Jackson makes no claim that he was subjected to a

fundamental miscarriage of justice.

      As part of this first claim, Mr. Jackson suggests that the disparate treatment

of his claim by the OCCA—affirming his sentence while reversing the sentences

of two other defendants who received consecutive sentences from the same trial

judge pursuant to her policy—violated his equal protection rights. However, his

“argument here comes down to a contention that [Oklahoma] law was

misapplied.” See Beck v. Washington, 369 U.S. 541, 554 (1962). Despite their

apparent similarity, the OCCA found the sentences imposed on two other

defendants an abuse of discretion under state law, and not his. This is not a

violation of equal protection. The Fourteenth Amendment does not preclude a

court from reaching different outcomes in cases with different facts, and even if

the court erred, the Amendment does not protect against mere misapplication of

state law. Id. at 554–55.

      As his second ground for relief, Mr. Jackson argues that his trial counsel

was ineffective for failing to expose the police officers’ testimony as perjury.

However, the OCCA declined to reach the merits of this issue because Mr.

Jackson did not raise this issue in his direct appeal. The federal district court

likewise declined because Mr. Jackson did not even attempt to show “cause and

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prejudice” for the default or that any “fundamental miscarriage of justice” would

result if the claim was not considered. We decline to reach the merits of this

claim for the same reason.

      B. Ineffective Assistance of Trial Counsel (Grounds 4 & 7)

      As grounds four and seven, Mr. Jackson argues that his trial counsel was

ineffective on several occasions in the course of the trial. These claims fail

because Mr. Jackson’s trial counsel’s effectiveness is not reasonably subject to

debate.

      Mr. Jackson first argues that trial counsel was unconstitutionally deficient

for waiving Mr. Jackson’s presence during a “critical stage of the trial.” Petr.’s

Br. at 13. This claim is completely without merit. While counsel did waive Mr.

Jackson’s presence during a brief segment of trial, the only matter discussed

during his absence was the timing of the jury’s lunch break. Mr. Jackson fails to

show that any prejudice occurred during this brief absence.

      Next, Mr. Jackson claims that his trial counsel refused to argue the merits

of a pro se motion that Mr. Jackson had written to quash, suppress, and dismiss.

There is no evidence in the record that trial counsel refused to argue anything.

Mr. Jackson even admits that his counsel later presented the arguments contained

in the motion as part of Mr. Jackson’s defense. Therefore, Counsel’s strategic

decision not to argue the merits of the pro se motion was not prejudicial because

the motion was redundant.

                                         -7-
      As ground seven, Mr. Jackson argues that his trial counsel was deficient for

failing to investigate available defenses such as self-defense. This argument fails

because Mr. Jackson was the initial aggressor when he pushed, kicked and

elbowed Officers Ford and Dickson. R., Doc. 46 Exh. A, at 4. See Ruth v.

Oklahoma, 581 P.2d 919, 922 (Okla. Crim. App. 1978).

      C. Ineffective Assistance of Appellate Counsel (Grounds 3 & 6)

      Mr. Jackson argues as his third and sixth grounds for relief that his

appellate counsel was ineffective for failing to raise several issues on appeal.

These claims are also without merit. When analyzing counsel’s strategic decision

to omit an issue on appeal, we grant deference to the professional judgment of the

appellate attorney. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003).

Furthermore, we may “examine the merits of the omitted issue,” and if it “is

without merit, counsel’s failure to raise it does not constitute constitutionally

ineffective assistance.” United States v. Cook, 45 F.3d 388, 392–93 (10th Cir.

1995) (internal quotation marks omitted).

      Mr. Jackson first argues that appellate counsel failed to adequately present

a claim that Mr. Jackson’s sentence must be modified. However, the record

shows that appellate counsel argued this issue extensively on direct appeal.

Indeed, as the district court observed, Mr. Jackson used identical language in his

§2254 petition to present this sentencing claim as that used by his counsel on

direct appeal.

                                         -8-
      Mr. Jackson next complains that his appellate counsel failed to challenge

the sufficiency of the evidence and the jury instructions relating to his conviction

for unlawful possession of a controlled drug. This argument is without merit,

however, because there was ample evidence for a reasonable trier of fact to have

found Mr. Jackson guilty beyond a reasonable doubt. Likewise, we agree with the

district court’s finding that the jury instructions accurately reflected the law.

      Mr. Jackson also argues that his appellate counsel was ineffective because

he failed to challenge the trial court’s refusal to give an instruction on the lesser

included offense of assault upon a police officer. Under Oklahoma law, actual

touching is an element of a battery, but physical contact is not an essential

element of assault. Joplin v. State, 663 P.2d 746, 747 (Okla. Crim. App. 1983).

Consideration of a lesser included offense in Oklahoma is unnecessary where

there is “uncontroverted evidence” of the element(s) that distinguish the greater

offense from the lesser offense. See Taylor v. State, 761 P.2d 887, 889 (Okla.

Crim. App. 1988). In this case, an instruction on the lesser included offense of

assault upon a police officer was unnecessary because there is uncontroverted

evidence that Mr. Jackson touched Officers Ford and Dickson when he pushed,

elbowed, and kicked the officers.

      Finally, Mr. Jackson argues ineffectiveness in the failure of his attorney to

challenge the use of one of Mr. Jackson’s prior convictions. Mr. Jackson asserts

that this prior conviction was vacated and barred by double jeopardy. Mr.

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Jackson’s claim is without merit because his prior conviction was not vacated.

Although a different prior conviction had been vacated, the conviction used to

enhance Mr. Jackson’s sentence is still valid.

      D. Double Jeopardy (Ground 5)

      As his fifth ground for relief, Mr. Jackson contends that his conviction on

two counts of assault and battery upon a police officer violates the Fifth

Amendment’s prohibition against double jeopardy because the acts on which

those counts arose occurred in one general transaction. Punishments at the same

trial, however, are not considered “multiple” for purposes of double jeopardy

unless the sentencing court imposes “greater punishment than the legislature

intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). We look to the

decisions of the Oklahoma courts to discern the intent of the Oklahoma legislature

in enacting the statute under which Mr. Jackson was convicted. Id. The OCCA

has long held that “where crimes against the person are involved, even though

various acts are part of the same transaction, they will constitute separate and

distinct crimes where they are directed at separate and distinct persons.”

Jennings v. State, 506 P.2d 931, 935 (Okla. Crim. App. 1973). Further, the

OCCA consistently applies the Blockburger test to determine whether multiple

convictions violate the double jeopardy clause. Ball v. State, 173 P.3d 81, 93

(Okla. Crim. App. 2007). Under Blockburger, the same act or transaction

constitutes multiple offenses when each offense “requires proof of a fact which

                                        -10-
the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

Under these principles, Mr. Jackson’s convictions on two separate assault and

battery charges do not violate the Fifth Amendment’s prohibition against double

jeopardy.

                               III. CONCLUSION

      Accordingly, we DENY Mr. Jackson’s request for a COA and DISMISS

this appeal.

                                              Entered for the Court,

                                              Michael W. McConnell
                                              Circuit Judge




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