                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 12, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 W A RREN H A RD IN G D EA N ,

       Petitioner - A ppellant,
                                                        No. 06-5150
 v.                                             (D.C. No. 03-CV-00598-TCK)
                                                        (N.D. Okla.)
 O K LA H OMA D EPA RTM EN T OF
 C ORREC TIO N S; R ON WA R D ,

       Respondents - Appellees.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-Appellant W arren Harding Dean, a state inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal from the district

court’s order denying relief on his petition for habeas corpus filed pursuant to 28

U.S.C. § 2254. Because M r. Dean has failed to make a “substantial showing of

the denial of a constitutional right,” see id. § 2253(c)(2); Slack v. M cDaniel, 529

U.S. 473, 483-84 (2000), we deny a COA and dismiss the appeal.

      On February 13, 2001, M r. Dean was stopped by Tulsa, Oklahoma police

officers after driving through a stop sign and failing to signal a turn. M r. Dean

was the driver of the car and Kimberly Hunt was his passenger. After being
stopped, M r. Dean could not produce a driver’s license. The police then asked

M r. Dean to exit his car, and they observed several small, tan crumbs lying on the

driver’s seat. The officers suspected the crumbs were crack cocaine and asked

M r. Dean to open his mouth so they could check for hidden drugs. M r. Dean had

a large, tan rock in his mouth which he spat out. A search of the car produced an

additional three tan rocks. The crumbs and rocks were later identified as crack

cocaine.

      M r. Dean and M s. Hunt were both arrested and charged with felony

possession of crack cocaine. The Tulsa County Public Defender’s Office was

appointed to represent both defendants. On M arch 14, 2001, M r. Dean’s

appointed attorney requested that he be allowed to withdraw. An entry on the

docket sheets reflects that this request was granted by Judge Haskins.

Nevertheless, the same attorney appeared on behalf of M r. Dean before Judge

Singer on A pril 11, 2001. On A pril 16, 2001, that same attorney represented M s.

Hunt as she entered a plea of nolo contendere before Judge Harris. Two days

later, on April 18, 2001, M r. Dean appeared at a preliminary hearing before Judge

Haskins, again represented by the same attorney. On June 22, 2001, Judge Harris

conducted a hearing on M r. Dean’s pro se motions for a new attorney and to

suppress evidence. Those motions were denied. The same attorney then

represented M r. Dean throughout his trial, which was held before Judge Peterson.

      M r. Dean was subsequently convicted by a jury of being a felon in

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possession of crack cocaine after former conviction of two or more felonies

(Count I) and for driving without a driver’s license (Count II). He was sentenced

to serve forty-five years of imprisonment and to pay a fine of $10,000 for Count I

and to serve thirty days in the county jail on Count II, with the sentences to run

concurrently. He immediately appealed his conviction and sentence to the

Oklahoma Court of Criminal Appeals (OCCA). The O CCA rejected all of M r.

Dean’s arguments in a summary order issued on January 22, 2003. M r. Dean then

filed his federal petition for a writ of habeas corpus pursuant to § 2254. In the

petition, M r. Dean argued: (1) that the state trial court committed fundamental

error by refusing to appoint conflict-free counsel in violation of the Sixth

Amendment, (2) that the jury was improperly instructed as to the minimum

sentence for possession of a controlled substance, and (3) that his forty-five year

sentence was excessive and should be modified.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a

petitioner may obtain federal habeas relief only if the state court decision was

contrary to or “involved an unreasonable application, of clearly established

Federal law, as determined by the Supreme Court of the United States,” or “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d); W illiams v.

Taylor, 529 U.S. 362, 402-03 (2000). Thus, when a state court applies the correct

federal law to deny relief, a federal court will only grant relief if the state court

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applied federal law in an objectively unreasonable manner. Hooper v. M ullin,

314 F.3d 1162, 1169 (10th Cir. 2002). Furthermore, a federal habeas court must

presume state court factual findings to be correct and require the petitioner to

rebut that presumption with clear and convincing evidence. 28 U.S.C. §

2254(e)(1); Hooper, 314 F.3d at 1167.

      W ith respect to M r. Dean’s ineffective assistance of counsel argument, the

district court determined that the OCCA’s adjudication of the claim was not

contrary to or an unreasonable application of Supreme Court precedent. M r. Dean

claimed that counsel’s ineffectiveness resulted from a conflict of interest.

Essentially, M r. Dean wanted to call M s. Hunt as a witness, but his counsel

refused. Counsel explained to Judge Peterson that it would not be in M r. Dean’s

best interest to call M s. Hunt in light of her probable testimony and the existence

of credibility issues stemming from her criminal record. Although the record is

unclear, the district court below surmised that M s. Hunt would testify that all the

crack cocaine found in the vehicle was hers.

      To prevail on an ineffective assistance of counsel claim, a petitioner must

show that counsel’s performance was deficient and that the petitioner was

prejudiced as a result. Strickland v. W ashington, 466 U.S. 668, 687 (1984). To

show ineffective assistance based on a conflict of interest, a petitioner who

“raised no objection at trial must demonstrate that an actual conflict of interest

adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,

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348 (1980). Applying these standards to the OCCA’s determination, the district

court noted that M r. Dean failed to object to counsel’s ongoing representation at

trial. It also noted that M r. Dean failed to demonstrate that his counsel

represented conflicting interests. M oreover, it noted that the trial court’s

supposed failure to inquire into the alleged conflict of interest was immaterial

because M r. Dean never showed that the alleged conflict adversely affected

counsel’s performance–that is, that the alleged conflict affected the adequacy of

representation. See M ickens v. Taylor, 535 U.S. 162, 172-73 (2002). Because it

found M r. Dean failed to show deficient performance, the district court concluded

that the OCCA’s adjudication of the claim was not an unreasonable application of

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

      As a second ground for relief, M r. Dean argued that the jury should have

been instructed regarding changes made to Okla. Stat. tit. 21, §51.1 that took

effect after M r. D ean was arrested. M r. D ean was arrested on February 13, 2001.

On July 1, 2001, § 51.1 was amended to provide, for offenders with two previous

felonies, a minimum statutory sentence of three times the minimum provided in

the applicable felony statute for a first-time offender. The minimum sentence for

M r. Dean’s drug offense was two years, so, having two prior felonies, M r. Dean

would have been subject to a minimum sentence of six years, rather than the

twenty-year minimum in effect prior to the statute’s amendment. The OCCA

rejected this claim because it determined that the amendment was not meant to be

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retroactive under O klahoma law.

      The district court correctly noted that federal habeas relief does not lie for

errors of state law. See Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991).

Accordingly, it noted that M r. Dean would only be entitled to relief if the OCCA

wrongly applied Oklahoma law and if failing to apply the amendment

retroactively resulted in a denial of due process. See Aycox v. Lytle, 196 F.3d

1174, 1179-80 (10th Cir. 1999). Because the OCCA has held that the amendment

to § 51.1 was not retroactive, see Williams v. State, 59 P.3d 518, 519 (Okla.

Crim. App. 2002), the district court concluded that M r. Dean had failed to show

an error of state law, much less that denying him retroactive application of the

amendment was “arbitrary in the constitutional sense; that is, [shocking to the]

judicial conscience.” Aycox, 196 F.3d at 1180.

      W ith regard to the third claim, that M r. Dean’s sentence was excessive, the

district court noted that, at the time of his crime, Oklahoma had no maximum

sentence for a habitual offender like M r. Dean, who the evidence reflected had

eleven prior felony convictions. It found that the OCCA had adjudicated this

claim correctly, because where a sentence is imposed within the maximum

provided by statute, there is no basis for habeas relief. See M urphy v. Oklahoma,

974 F.2d 1345 (Table) at *1 (10th Cir. 1992) (citing Cooper v. United States, 403

F.2d 71, 73 (10th Cir. 1968)). The district court further noted that the sentence

was not grossly disproportionate to M r. Dean’s crime, such that it constituted

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cruel and unusual punishment in violation of the Eighth Amendment. See

Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003).

      Under AEDPA , we may not issue a CO A unless “the applicant has made a

substantial showing of the denial of a constitutional right.” Slack, 529 U.S. at

483. In other words, a COA will only issue if an applicant can show “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.” Id. at 484. However, as the Supreme

Court explained in M iller-El v. Cockrell, 537 U.S. 322, 336 (2003), we are

required to “look to the District Court’s application of A EDPA to petitioner’s

constitutional claims and ask whether that resolution was debatable amongst

jurists of reason.” After review, we conclude that the district court applied the

proper precedent in reviewing the OCCA’s disposition of M r. Dean’s appeal and

that its resolution of M r. Dean’s claims is not reasonably debatable.

      W e DENY a COA and DISM ISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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