                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 19, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court



 W ILLIE C . C AR SO N ,

          Petitioner - A ppellant,
                                                         No. 06-6219
 v.
                                                  (D.C. No. CIV-05-1049-C)
                                                        (W .D. Okla.)
 R ON W A R D ,

          Respondent - Appellee.



                              OR DER DENYING
                       CERTIFICATE O F APPEALABILITY *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.




      W illie Carson, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we D EN Y a COA and DISM ISS.

      Carson challenges his convictions, following a jury trial, for possession of

cocaine with intent to distribute after four previous convictions (Count 1) and




      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
possession of marijuana (Count 2). He was sentenced to thirty years’

imprisonment on Count 1 and six months’ imprisonment on Count 2, to run

consecutively. Carson exhausted his state remedies before bringing this timely

petition in federal court. He advances five grounds for habeas relief: (1) H is

multiple convictions arose out of a single course of conduct and therefore

constitute double jeopardy; (2) His sentence is excessive in violation of the

Eighth Amendment; (3) He received ineffective assistance of appellate counsel;

(4) The State failed to prove his prior convictions beyond a reasonable doubt; and

(5) H e received ineffective assistance of trial counsel.

      The O klahoma Court of Criminal Appeals (“O CCA”) adjudicated Carson’s

first and second claims on direct appeal and his third claim in a post-conviction

proceeding. As to these claims, a writ of habeas corpus may not issue unless the

state court adjudication:

      (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 U nited 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.

28 U.S.C. § 2254(d). In order to issue a COA on any of C arson’s claims, we must

determine that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural



                                          -2-
ruling.” Slack v. M cD aniel, 529 U.S. 473, 484 (2000). 1

      In a habeas petition alleging multiple punishment double jeopardy, such as

Carson’s, we review only to determine whether the trial court imposed a sentence

greater than the legislature intended. M issouri v. Hunter, 459 U.S. 359, 368

(1983). “[W ]e are bound by a state court’s determination of the legislature’s

intent.” Cummings v. Evans, 161 F.3d 610, 615 (10th Cir. 1998) (quoting Birr v.

Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990). Thus, “if the highest state court

determines that the legislature intended to punish separate offenses cumulatively,

a federal habeas court must defer to that conclusion.” Cummings, 161 F.3d at

615. The OCCA rejected Carson’s double jeopardy claim after determining that

his convictions arose from “two separate and distinct acts which . . . do not

violate . . . the constitutional prohibition against double jeopardy.” W e defer to

the O CCA’s reasonable determination that the legislature intended to punish

Carson’s marijuana and cocaine offenses as separate and distinct acts.

      Carson also contends that his sentence of 30.5 years is excessive in

violation of the Eighth Amendment. A defendant’s sentence does not violate the

Eighth Amendment unless it is grossly disproportionate to his crimes. Hawkins v.

Hargett, 200 F.3d 1279, 1282-83 (10th Cir. 2006). In reviewing for gross




      1
        The A ntiterrorism and Effective D eath Penalty Act conditions a
petitioner’s right to appeal the denial of habeas relief under § 2254 upon a grant
of a COA. 28 U.S.C. § 2253(c)(1)(A).

                                         -3-
disproportionality, “[w]e are reluctant to interfere with the legislative

determination of an appropriate sentence range.” Id. at 1285. The OCCA

determined that Carson’s sentence was within the statutory range of punishment.

See Okla. Stat. tit. 21, § 51.1(C). M oreover, the Supreme Court has held that a

sentence of life without parole is not disproportionate to a first-time offender’s

conviction of possession of cocaine. Harmelin v. M ichigan, 501 U.S. 957, 994

(1991). In light of Harmelin and the Oklahoma legislature’s proper role in setting

sentence ranges, we cannot say that Carson’s sentence is grossly disproportionate.

W e accordingly dismiss his Eighth Amendment claim.

      In his third ground for relief, Carson argues that he received ineffective

assistance of appellate counsel. Under the two-part test established in Strickland v.

Washington, 466 U.S. 668 (1984), Carson must prove that “counsel’s representation

fell below an objective standard of reasonableness” and that “any deficiencies in

counsel’s performance [were] prejudicial to the defense.” Id. at 688, 692. W e

examine such claims with a “strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689.

       Carson contends that his appellate counsel was ineffective for failing to

argue that the evidence was insufficient to support his conviction for possession

of cocaine with intent to distribute. In reviewing the sufficiency of the evidence

to support a conviction, we must determine “whether, viewing the evidence in the

light most favorable to the government, a reasonable jury could have found the

                                          -4-
defendant guilty of the crime beyond a reasonable doubt.” United States v.

Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004). At Carson’s trial, Oklahoma City

Police Officer Earl Flanagan testified that the quantity of cocaine in Carson’s

possession and the absence of accompanying drug paraphernalia were consistent

with distribution rather than personal use. This evidence is sufficient to support

conviction of possession of cocaine with intent to distribute, and appellate

counsel’s failure to raise insufficiency of the evidence on direct appeal therefore

did not prejudice Carson.

        Carson also argues that appellate counsel should have raised an

ineffective assistance of trial counsel claim because trial counsel failed to request

a lesser included offense instruction of simple possession. However, Carson

testified at trial that he never possessed the drugs at issue and neither used nor

sold drugs. Because trial counsel may have reasonably structured the defense in

hopes of obtaining outright acquittal on the charged offense, the decision not to

request a lesser included offense instruction falls within the range of reasonable

professional conduct. Appellate counsel was therefore not ineffective for failing

to raise the deficiency of trial counsel, and the OCCA did not unreasonably apply

Strickland in dismissing Carson’s third claim.

      Carson’s fourth and fifth claims – that the State failed to prove his prior

convictions beyond a reasonable doubt and that trial counsel was ineffective for

not investigating these convictions – were defaulted in state court because Carson

                                         -5-
failed to raise them on direct appeal as required by Oklahoma’s U niform Post-

Conviction Procedure Act. Okla. St. tit. 22, § 1086. W e are precluded from

reviewing claims defaulted on adequate and independent state procedural grounds

unless Carson demonstrates “cause and prejudice or a fundamental miscarriage of

justice.” Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004). Because Carson

does not present evidence sufficient to meet the “cause and prejudice” or

“fundamental miscarriage of justice” standards, we are foreclosed from

considering these claims on the merits. 2

      Carson’s request for a COA is DENIED and his petition is DISM ISSED.

W e G R A NT his motion to proceed on appeal in forma pauperis.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




      2
         W e have excepted ineffective assistance of trial counsel claims from the
normal procedural default rules, determining that review is precluded “only when
‘trial and appellate counsel differ’ and the ‘claim can be resolved upon the trial
record alone.’” M ullin, 379 F.3d at 926 (quoting English v. Cody, 146 F.3d 1257,
1264 (10th Cir. 1998)). Different attorneys represented Carson at the trial and
appellate levels, and Carson’s claim of insufficient evidence to support his prior
convictions can be evaluated on the trial record alone. Thus, Carson’s ineffective
assistance of trial counsel claim does not fall within our exception to normal
procedural default rules.

                                            -6-
