                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                 September 6, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 W ILLIA M M cC OR MA C K ,

          Petitioner-A ppellant,

 v.                                                      No. 07-7028
                                               (D.C. No. 03-CV-515-JHP-KEW )
 JUSTIN JONES, DIRECTOR,                                 (E.D. Okla.)
 O K LA H OMA D EPA RTM EN T OF
 CO RR ECTIONS, *

          Respondent-Appellee.



                        OR DER DENYING A CERTIFICATE
                              OF APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.




      W illiam M cCormack, an Oklahoma 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. 1

      *
        Ron W ard is no longer Director of the Oklahoma Department of
Corrections. W e have substituted Justin Jones, the current Director, pursuant to
Federal Rule of Appellate Procedure 43(c)(2).
      1
         Because the district court denied M cCormack a COA, he may not appeal
the district court’s decision absent a grant of COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
                                                                      (continued...)
                                          I

      M cCormack challenges his M ay 15, 2000, jury conviction on multiple

counts related to his possession of methamphetamine, illegal possession of a

firearm, and attempt to evade police pursuit. 2 He was sentenced by the jury to

concurrent terms of imprisonment, the longest of which was one hundred years.

M cCormack sought relief on direct and collateral appeal from the Oklahoma

Court of Criminal Appeals (“OCCA”) before bringing this timely petition in

federal court.

                                         II

      Construing his request for a COA liberally, M cCormack advances the

following claims: (1) The district court did not review the m agistrate judge’s

report de novo in light of his objections to it; (2) He received ineffective

assistance of trial counsel; (3) He received ineffective assistance of appellate

counsel; (4) The evidence presented at trial was insufficient to support his



      1
        (...continued)
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires M cCormack to show “that reasonable jurists could debate w hether (or,
for that matter, agree that) 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. M cDaniel, 529 U.S. 473, 484 (2000)whhat’ (quotations
omitted).
      2
         M cCormack was convicted on six counts: (1) attempting to elude a
police officer; (2) possession of a controlled substance; (3) carrying a firearm
after a former felony conviction; (4) reckless driving; (5) possession of drug
paraphernalia; and (6) driving while his license was suspended.

                                         -2-
convictions; and (5) Evidence presented at trial was procured by unlawful means.

                                         A

      M cCormack’s first claim is meritless. De novo review of the portions of

the magistrate’s report to which a party objects is required by 28 § U.S.C.

636(b)(1). “[T]he district court is presumed to know that de novo review is

required,” and we will not remand the case unless “circumstances indicate”

otherw ise. Northington v. M arin, 102 F.3d 1564, 1570 (10th Cir. 1996). In

M cCormack’s case, the district court stated in its order adopting the

recommendations of the magistrate judge that it “review[ed] . . . the Report and

Recommendation in light of Petitioner’s objections” and “consider[ed] . . . the

record, pleadings, and applicable law.” This is sufficient to show that the district

court conducted de novo review .

                                         B

      M cCormack did not raise his second claim on direct appeal. Thus, it was

procedurally defaulted under Okla. Stat. tit. 22, § 1086, as the OCCA found on

collateral review. “Under AEDPA , we generally may not consider issues on

habeas review that have been defaulted in state court on an independent and

adequate state procedural ground, unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” Hammon v. W ard, 466 F.3d

919, 925 (10th Cir. 2006) (quotation omitted). Nor has M cCormack presented

evidence sufficient to meet either of these standards. Oklahoma’s procedural bar


                                         -3-
therefore precludes us from considering this claim. See Cannon v. Gibson, 259

F.3d 1253, 1265-66 (10th Cir. 2001).

                                          C

      M cCormack’s third claim, that appellate counsel was constitutionally

ineffective, was raised before the OCCA on collateral appeal. A ccordingly, a

COA may not issue on this claim 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 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.

28 U.S.C. § 2254(d).

      Although M cCormack has not renewed each basis for this claim with

specificity in his application for a COA, we presume that he appeals the district

court’s denial as to all the alleged failures and omissions of appellate counsel on

direct appeal. Those shortcomings consist of counsel’s alleged failure to: (1)

challenge the trial court’s jurisdiction to sentence M cCormack as a habitual

offender; (2) bring a Fourth Amendment challenge to the trial court’s admission

of certain evidence; (3) challenge the trial court’s combination of provisions from

Okla. Stat. tit. 63, § 2-402 and Okla. Stat. tit. 21, § 51(B) in its sentencing

instructions to the jury; and (4) challenge the number and validity of the prior

convictions used to enhance M cCormack’s sentence. M cCormack also challenges



                                          -4-
his appellate counsel’s failure to allege ineffective assistance of trial counsel as to

each of these matters. W e therefore examine the effectiveness of counsel at both

the trial and appellate stages.

      Under the two-part test established by the Supreme Court in Strickland v.

W ashington, 466 U.S. 668 (1984), M cCormack 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. In applying the Strickland standard to appellate counsel, “we look to the

merits of the omitted issue” in the context of counsel’s overall defense strategy.

Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). Further deference is

credited to the OCCA under AEDPA, in that we grant relief only if the OCCA

unreasonably applied the Strickland standard. See 28 U.S.C. § 2254(d)(1).

      After careful review of the record, we substantially adopt the reasoning of

the district court regarding M cCormack’s claims of ineffective assistance.

Because all but one of M cCormack’s underlying legal arguments are without

merit, and the other did not cause him prejudice, neither his trial nor appellate

counsel could have been ineffective in failing to raise them, and the O CCA’s

application of Strickland (although not terribly detailed) w as reasonable.

      First, we find no merit in M cCormack’s argument that the trial court lacked


                                          -5-
jurisdiction to try him as a habitual offender. In 1989, M cCormack was convicted

of drug and firearms charges and sentenced to two ten-year concurrent prison

terms. Three years of each sentence was suspended, contrary to Oklahoma state

law disallowing suspended sentences for repeat offenders. See Davis v. State,

845 P.2d 194, 197 (O kla. Crim. App. 1993); Okla. Stat. tit. 22, § 991a(A )(1), (C).

At his 2000 trial, the jury was instructed that these sentences increased his

sentencing range pursuant to Oklahoma’s then-existing habitual offender statute,

Okla. Stat. tit. 21, § 51 (1998 & Supp. 1999) (“former § 51”). M cCormack argues

that the 1989 sentences were void and should not have been relied upon.

However, Oklahoma case law holds that such sentences are not void on their

faces, and that challenges to their validity must be made while they are being

served. See King v. State, 29 P.3d 1089, 1090-91 (Okla. Crim. App. 2001). 3

Thus, the trial court did not err in instructing the jury to sentence M cCormack as

a repeat offender in this case, and his counsel were not ineffective for failing to

raise this meritless issue.

      Second, the district court properly rejected M cCormack’s Fourth

Amendment-based ineffective assistance claim. M cCormack argues that his arrest

was illegal based on Oklahoma state law regarding vehicular pursuit and therefore


      3
        State court interpretations of state law are binding upon federal courts
conducting habeas review. Estelle v. M cGuire, 502 U.S. 62, 67-68 (1991).
Although neither the magistrate judge nor the O klahoma low er court which heard
M cCormack’s case on collateral appeal cited King on this point, we remain bound
by it.

                                         -6-
violated the Fourth Amendment prohibition against illegal searches and seizures.

As the district court found, M cCormack’s trial counsel vigorously argued this

issue, and his appellate counsel was not ineffective in failing to resurrect it.

      Third, M cCormack argues that his counsel was ineffective for failing to

challenge the jury instruction regarding enhancement of M cCormack’s sentence

for unlawful possession of a controlled dangerous substance. The jury was

instructed that the minimum sentence M cCormack could receive for this count

was twenty years. This was the proper range under former § 51 for a drug felony

comm itted after two nondrug felony convictions. See Novey v. State, 709 P.2d

696, 699 (Okla. Crim. App. 1985). Again, neither his trial nor appellate counsel

were ineffective in declining to raise this meritless claim.

      W e differ from the district court only in our analysis of M cCormack’s

fourth ineffective assistance claim, that his appellate and trial counsel failed to

challenge the jury’s consideration of certain of his past felonies. M cCormack had

a felony conviction from 1987 and two more from 1989. The latter two

convictions count collectively as one prior offense under former § 51(B) because

they arise from the same “transaction or occurrence.” Id. Oklahoma case law

does not allow a prior felony to count both as the foundation for a charge of

carrying a firearm after conviction of a felony and as a prior offense under former

§ 51(B). See Chapple v. State, 866 P.2d 1213, 1216 (Okla. Crim. App. 1993). In

the instructions to M cCormack’s jury, the trial court used one of his 1989


                                          -7-
convictions as the foundational felony and used both his 1987 conviction and his

second 1989 conviction as sentence-enhancing prior offenses, arguably violating

state law by double-counting the 1989 occurrence. Therefore, contrary to the

district court’s conclusion, it is not entirely clear that this claim lacks merit.

      However, even if this error rose to the level of ineffectiveness, it did not

prejudice M cCormack. An attorney’s error is not cognizable as a Sixth

Amendment harm unless the defendant shows “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. The proper enhanced sentence range for

M cCormack’s firearms conviction with one prior offense under former § 51, ten

years to life, would still allow the sentence M cCormack received. Given that the

jury imposed a sentence so far above the instructed minimum of twenty years, it

is unlikely that a minimum of ten years w ould have led them to reduce the eighty

years imposed. 4 M cCormack has not shown that a successful argument regarding

his sentence enhancement would have led to a different result.

                                            D

      W e understand M cCormack’s fourth and fifth claims as renewing his


      4
         W e also note that M cCormack’s eighty year sentence for the firearms
conviction is set to run concurrently with his one hundred year sentence for
possession of a controlled substance. However, we do not have a per se rule
barring consideration of whether prejudice may have resulted from an error
affecting only the lesser of concurrent sentences. See, e.g., United States v.
Brown, 996 F.2d 1049, 1053 (10th Cir. 1993); but cf. United States v. Hollis, 93
F. App’x 201, 203 (10th Cir. 2004).

                                           -8-
argument before the district court that the State violated his due process rights at

trial by failing to establish a chain of custody for certain methamphetamine

evidence. M cCormack alleges that this evidence was improperly admitted at trial

because testimony from the arresting officer demonstrated numerous breaks in the

chain of custody and indicated that the evidence might have been tam pered with

or otherwise mishandled. Citing to its decision in W ilson v. State, 983 P.2d 448,

462 (O kla. Crim. App. 1998), the OCCA held on direct appeal that “the State

sufficiently demonstrated the chain of custody regarding State’s exhibits 2 and 4.

The trial judge correctly admitted the evidence and let whatever doubt existed

regarding tampering or substitution go to its weight.” On collateral review, w e

give considerable deference to state court evidentiary rulings, and “may not

provide habeas corpus relief . . . unless [those rulings] rendered the trial so

fundamentally unfair that a denial of constitutional rights results.” Duckett v.

M ullin, 306 F.3d 982, 999 (10th Cir. 2002) (quotation omitted). M cCormack

presents no evidence that the admission of this evidence rendered his trial

fundamentally unfair, and we therefore deny a COA with respect to his chain-of-

custody claim.

                                         III

      For the reasons set forth above, M cCormack’s request for a COA is




                                          -9-
DENIED and his petition is DISM ISSED.


                                  ENTERED FOR THE COURT



                                  Carlos F. Lucero
                                  Circuit Judge




                                   -10-
