                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 11 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CHRISTOPHER BIVENS,

                Petitioner-Appellant,

    v.                                                   No. 97-6333
                                                     (D.C. No. 97-CV-568)
    STEVE HARGETT,                                       (W.D. Okla.)

                Respondent-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY, McKAY, 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.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Christopher Bivens appeals the district court’s denial of his

petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.

Because petitioner has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss the appeal.


                                     Background

      Petitioner was arrested in Oklahoma for passing bogus checks. Before

trial, his attorney filed a number of motions, including a motion to suppress.

These motions were denied, however, when petitioner’s attorney failed to appear

at the suppression hearing. Petitioner was convicted of two counts of obtaining

money or property by false pretenses, two counts of attempting to obtain money

by false pretenses, and one count of conspiracy. Because petitioner had two prior

convictions in Texas, he was sentenced to a total of 130 years’ incarceration.

      On direct appeal, the Oklahoma public defender’s office raised and fully

briefed the following issues:

             1. The trial court erred in failing to rule that petitioner’s
      arrest was without probable cause, in violation of the Fourth and
      Fourteenth Amendments, and in admitting evidence and statements
      illegally obtained from petitioner following the improper arrest;

             2. As the state did not establish the validity of the initial
      seizure of petitioner and his car, any subsequent search of the vehicle
      violated the U.S. and Oklahoma constitutions;


                                          -2-
              3. The seizure of items from petitioner’s car during an
      inventory search six months after his arrest violated his constitutional
      rights;

            4. The in-court identification of petitioner was influenced by
      unduly suggestive pre-trial identification procedures in violation of
      the due process clause of the U.S. and Oklahoma constitutions;

             5. Two of the counts should have been dismissed for
      insufficient evidence because petitioner was in police custody when
      the charged crimes were committed; and

            6. Because petitioner was in custody when two of the crimes
      occurred, failure to give an alibi instruction was fundamental error.

After considering “the entire record . . . including the original record, transcripts,

and briefs of the parties,” the Oklahoma Court of Criminal Appeals affirmed

petitioner’s convictions, finding “that neither reversal nor modification is

required under the law and the evidence.” R., doc. 13, exh. A at 2.

      Petitioner filed an application for post-conviction relief in the Oklahoma

state district court, raising twenty-one claims for relief. The state district court

denied the application on July 15, 1996, holding (1) the issues that had been

raised previously in petitioner’s direct appeal were barred from consideration by

res judicata; (2) the issues that had not been raised in the direct appeal were

barred because they should have been raised earlier; and (3) petitioner had not

alleged or proved an exception to the “bypass rule.”

      Under Oklahoma rules of procedure, petitioner’s appeal from the district

court’s decision was due on August 14, 1996. Petitioner gave his appeal to prison

                                          -3-
authorities either on August 13 or 14. The state appellate court received the

appeal on August 15, one day out of time, and accordingly dismissed the appeal

for lack of jurisdiction. Petitioner then filed a motion to reconsider based on

Houston v. Lack , 487 U.S. 266, 274-76 (1988), which holds that under the federal

rules, a prisoner is deemed to have “filed” his appeal when he hands it to prison

authorities. The Oklahoma Court of Criminal Appeals rejected this filing,

presumably because a motion to reconsider was the wrong vehicle for raising this

claim (the second page of the order was not included in the record).

       On January 17, 1997, petitioner filed a second application for

post-conviction relief with the state district court. This application was denied

based on petitioner’s failure to verify the application as required by statute. The

Oklahoma appellate court affirmed the denial based on the lack of verification.

       On April 17, 1997, petitioner filed this federal habeas petition, asserting

twenty-one claims for relief.   1
                                    The magistrate judge to whom the case was


1
       The petition raised the following grounds for relief:

       1)    The trial court committed reversible and fundamental error in
       failing to rule that petitioner’s arrest was without probable cause and
       violated the Fourth and Fourteenth Amendments of the United States
       Constitution, and in admitting evidence and statements illegally
       obtained from petitioner, which resulted in a miscarriage of justice.

       2)    The State failed to establish the validity of the initial seizure of
       petitioner and his vehicle, therefore, any subsequent search of the
                                                                           (continued...)

                                            -4-
1
    (...continued)
          vehicle was in violation of the Fourth and Fourteenth Amendments of
          the United States Constitution and Article 2, § 30 of the Oklahoma
          Constitution and resulted in a miscarriage of justice.

         3) The alleged consent given to allow Detective Chris Lang to
         search petitioner’s vehicle was given after petitioner had invoked his
         Fifth Amendment right to counsel, thus the consent was invalid.

         4) The trial court committed reversible error, when the trial judge
         allowed an involuntary statement to be used as evidence without an
         in-camera hearing.

         5) The State failed to prove that the arrest and detention of
         petitioner were lawful, therefore any subsequent search was invalid.

         6) Because the State failed to show that the initial arrest was valid
         and because the State failed to show that the impound was conducted
         pursuant to written policies and procedures, the subsequent inventory
         of the vehicle was invalid.

         7) The seizure of items from petitioner’s vehicle on April 15,
         1994, was in violation of the Fourth and Fourteenth Amendments of
         the United States Constitution and Article 2, § 30 of the Oklahoma
         Constitution and resulted in a miscarriage of justice.

         8) The in-court identification of petitioner was influenced by
         unduly suggestive pre-trial identification procedures violative of the
         Due Process Clause of the United States and Oklahoma
         Constitutions, which resulted in a miscarriage of justice.

         9) Jessica Teel’s identification was tainted by the showing of a
         single photograph of petitioner, and the photographic line-up was
         both suggestive and inconclusive and violated petitioner’s due
         process rights and resulted in a miscarriage of justice.

         10) Counts II and III should be dismissed because petitioner was in
                                                                       (continued...)

                                           -5-
1
    (...continued)
          police custody when the charged crimes were committed, and
          evidence was insufficient to link petitioner with the charged crimes,
          which resulted in a miscarriage of justice.

         11) Trial Court lost jurisdiction over the person of petitioner and
         subject matter of the offenses, and was without authority of law to
         pronounce a valid judgment of conviction and sentence, by admitting
         into evidence an involuntary statement obtained in the denial of
         petitioner’s constitutional right to due process of law, which resulted
         in a miscarriage of justice.

         12) Petitioner’s conviction violates the Due Process Clause of the
         Fourteenth Amendment due to the ineffectiveness of his attorney,
         Joel A. Porter, resulting in a miscarriage of justice.

         13) Petitioner’s conviction violates the Due Process Clause of the
         Fourteenth Amendment due to the suppression of exculpatory
         evidence by the prosecutor (Ed Carey, Jr.) that should have
         established his innocence, resulting in a miscarriage of justice.

         14) Petitioner’s Sixth and Fourteenth Amendment rights were
         violated when the prosecutor used false evidence and perjured
         testimony to convict petitioner, thus resulting in a miscarriage of
         justice.

         15) Petitioner was denied his Fourteenth Amendment guarantee to
         effective assistance of counsel, when his court-appointed appellate
         counsel failed to raise obvious meritorious claims on direct appeal
         that would have resulted in vacation of conviction or modification of
         sentences, which resulted in a miscarriage of justice.

         16) The State post-conviction corrective process does not provide
         an adequate or effective remedy under 22 Okla Stat. §§ 1080-87 to
         afford petitioner a full and fair hearing on the federal claims alleged
         in petitioner’s appeal from denial for post-conviction relief, which on
         its face entitles petitioner to an evidentiary hearing in the District
                                                                             (continued...)

                                             -6-
1
    (...continued)
          Court of Stephens County, where the Oklahoma Court of Criminal
          Appeals applied an incorrect standard to decline jurisdiction, when
          petitioner’s claim of innocence overcomes any procedural bar and
          resulted in a miscarriage of justice.

         17) The Oklahoma Court of Criminal Appeals’ factual development
         does not rest upon an adjudication of the merits of petitioner’s claim
         raised on direct appeal (Prop. II-a: Where petitioner invoked his Fifth
         Amendment right to counsel, making the alleged consent invalid),
         which resulted in a decision that is contrary to clearly established
         federal law, as determined by the Supreme Court and an
         unreasonable determination of the facts, in light of the evidence
         presented in the State Court proceeding.

         18) Petitioner’s sentences exceed the maximum authorized by law
         in that the district trial court did not have subject matter jurisdiction
         over the recidivist charge or the authority under Oklahoma law to try
         the petitioner as a habitual offender under 21 Okla. Stat. § 51(B),
         resulting in the recidivist conviction of petitioner who is actually
         innocent and a fundamentally unjust incarceration.

         19) Petitioner was denied his substantial rights to due process, when
         Stephens County officials interfered with a pending judicial
         proceeding, by misinforming attorney Joel A. Porter on the specific
         time to appear for a scheduled motion hearing, thus denying
         petitioner both his state and federal rights to develop material facts
         and issues, which resulted in the conviction of petitioner who is
         actually innocent.

         20) Petitioner was denied due process and equal protection of the
         law, when District Judge George Lindley committed “plain error”
         and abused his discretion by failing to respond or grant petitioner’s
         request of trial transcript at State’s expense, which resulted in an
         obstruction of justice, thus making compliance with procedural rules
         impracticable, as petitioner was prejudiced, which prevented the
         petitioner from adequately raising claims of constitutional violations
                                                                            (continued...)

                                            -7-
referred recommended that the petition be denied in part and dismissed in part,

based on the following analyses.

         Noting that issues one through ten had been raised on direct appeal, he

recommended they be denied because (1) issues one through seven were search

and seizure claims barred by     Stone v. Powell , 428 U.S. 465 (1976); (2) issues

eight and nine, regarding unduly suggestive pretrial identifications, did not

deprive petitioner of due process because six eyewitnesses could not identify

petitioner from the photo array, and because although witness Teel’s

identification was tainted by an unduly suggestive pretrial procedure, there

was sufficient evidence other than her identification to convict petitioner; and

(3) issue ten did not demonstrate the evidence was insufficient because the

witnesses’ testimony regarding checks that were cashed “around 8:00 p.m.”

and “around 8:30 p.m.” were only approximations made nearly six weeks after

the events.



1
    (...continued)
          committed by trial judge, prosecutor and trial lawyer, as well as
          appellate counsel in collateral proceedings, which if proven, entitles
          petitioner to relief.

         21) The District Court of Stephens County lost jurisdiction over the
         person of defendant or the subject matter of the offenses when
         District Judge George W. Lindley denied petitioner his Fourteenth
         Amendment right to due process by failing to order a presentence
         investigation, thus resulting in an unjust incarceration.

                                            -8-
       The magistrate judge recommended that the remaining issues be dismissed

as procedurally barred, based on petitioner’s failure to timely appeal the denial of

his application for post trial relief. The magistrate judge concluded that petitioner

had not shown cause for his procedural default, because (1) he should have filed a

motion for an appeal out of time with the state district court instead of filing a

motion to reconsider with the state appellate court; (2) he did not prove he gave

the appeal to prison authorities on the date he claims to have done so; and (3) he

did not make a colorable showing of actual innocence so as to establish that a

procedural bar would create manifest injustice. Nonetheless, the magistrate judge

examined the merits of the procedurally defaulted issues to determine they were

without merit. The district court adopted the magistrate judge’s report and

recommendation. This appeal followed.

       Before we may review petitioner’s claims, he must obtain a certificate of

appealability, by making a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This standard is met by showing that petitioner’s

issues “are debatable among jurists, that a court could resolve the issues

differently, or that the questions deserve further proceedings.”   United States v.

Sistrunk , 111 F.3d 91, 91 (10th Cir. 1997). We conclude petitioner has not made

the required showing as to any of his issues.


                               Fourth Amendment Issues

                                            -9-
       Where a state has provided an opportunity for full and fair litigation of

Fourth Amendment claims, a state prisoner may not be granted federal habeas

corpus relief on the grounds that evidence obtained through an illegal search or

seizure was introduced at his trial.     See Stone v. Powell , 428 U.S. 465, 494

(1976). Here, Oklahoma gave petitioner the “opportunity” to test his Fourth

Amendment claims, but such available procedures were forfeited by his attorney’s

failure to appear at the hearing.      See Gamble v. Oklahoma , 583 F.2d 1161,

1164-65 (10th Cir. 1978) (explaining that court should focus primarily on whether

a state provided a procedural opportunity to litigate Fourth Amendment claims in

determining whether the state provided “an opportunity for full and fair

litigation” of such claims);   see also Miranda v. Cooper , 967 F.2d 392, 401

(10th Cir. 1992) (reiterating that court should focus on procedural “opportunity”

to raise claims, and holding petitioner’s Fourth Amendment claim not cognizable

because he failed to present it to state court despite adequate time to do so).

Further, the Fourth Amendment claims were fully briefed on appeal, and the

Oklahoma Court of Criminal Appeals appears to have considered the issues

on their merits.

       Petitioner’s argument that he was denied a full and fair opportunity to

litigate his Fourth Amendment issues based on his attorney’s failure to appear at

the suppression hearing is more properly viewed as an assertion of ineffective


                                             -10-
assistance of counsel. Such a claim is cognizable in federal habeas proceedings,

notwithstanding the rule in   Stone . See Kimmelman v. Morrison , 477 U.S. 365,

382-83 (1986). However, as will be discussed, petitioner’s ineffective assistance

claim has been procedurally defaulted.


                   Undue Suggestiveness of Pretrial Identifications

       Petitioner has not shown a substantial issue regarding the propriety of the

pretrial identification procedures. The magistrate judge correctly determined that

the photo array used for pretrial identification was not unduly suggestive because

six of the eyewitnesses could not identify petitioner.     See United States v.

Borrelli , 621 F.2d 1092, 1095-96 (10th Cir. 1980) (holding photo array was not

impermissibly suggestive, and stating it was “noteworthy” that only two of the

four eyewitnesses identified defendant from the photos);      Hill v. Wyrick , 570 F.2d

748, 751-52 (8th Cir. 1978) (holding when witness was unable to identify

petitioner from photo array it was not impermissibly suggestive, and a hearing

was not constitutionally required).

       So too, the magistrate judge’s resolution of petitioner’s claim regarding

witness Teel’s identification was proper. Teel was shown a single photo of

petitioner at the police station. The magistrate judge concluded that even if her

in-court identification of petitioner had been tainted by the impermissibly

suggestive procedure, there was sufficient other evidence to convict petitioner.

                                            -11-
As impermissible identification errors are subject to a harmless error analysis and

the evidence against petitioner was quite strong (including identification by other

eyewitnesses), we see no reason to grant a certificate of appealability on this

issue. See, e.g. , United States v. Rogers , 126 F.3d 655, 659-60 (5th Cir. 1997)

(holding admission of identification based on impermissibly suggestive

procedures to be harmless error);    United States v. Ciak , 102 F.3d 38, 42-43

(2d Cir. 1996) (same).


                  Sufficiency of the Evidence and Alibi Instruction

       Petitioner also has not made a substantial showing of the denial of a

constitutional right concerning the sufficiency of the evidence to support his

conviction on counts II and III, for the reasons stated by the magistrate judge.

His claim regarding the trial court’s failure to give an alibi instruction is not

cognizable on appeal as he did not raise the issue to the district court, except as

an element of his ineffective assistance of counsel claim.   See Glover v. Hargett ,

56 F.3d 682, 684 (5th Cir. 1995) (“[A] contention not raised by a habeas

petitioner in the district court cannot be considered for the first time on appeal

from that court’s denial of habeas relief.”) (citation omitted).


                          Procedural Bar of Remaining Issues




                                           -12-
      Finally, petitioner has not made a substantial showing that the Oklahoma

Court of Criminal Appeals deprived him of a constitutional right in dismissing his

post-conviction appeal as untimely, resulting in the procedural bar of his

remaining issues in this habeas action. Because petitioner’s procedural default

rested on a state rule of law which is uniformly enforced, the default was based

on independent and adequate state grounds. Further, petitioner has not shown

cause for his failure to apply for an appeal out-of-time, which is a remedy

available to a state post-conviction petitioner who has been denied an appeal

through no fault of his own.   See Banks v. State , 953 P.2d 344, 346 (Okla. Crim.

App. 1998); Hunnicutt v. State , 952 P.2d 988, 990 (Okla. Crim. App. 1997).

Because petitioner did not take advantage of an available state procedure which

might have salvaged his right to appeal, the magistrate judge was correct in

finding all of his remaining claims procedurally barred.



      Our opinion in Brecheen v. Reynolds , 41 F.3d 1343, 1363-64 (10th Cir.

1994), does not require a contrary result. There, we held that an ineffective

assistance of counsel claim may be considered on federal habeas review despite a

state court finding that the claim was procedurally defaulted because it had not

been raised on direct appeal. The decision reflected our concern that it would be

unfair to limit such a claim to direct appeal in light of the need for additional


                                         -13-
fact-finding and the need to permit consultation with separate counsel to obtain an

objective assessment of trial counsel's performance.       See Moore v. Reynolds , 153

F.3d 1086, 1096-97 (10th Cir. 1998). Here, in contrast, petitioner's claim was

considered on its merits in a state post-conviction proceeding, but was defaulted

because he failed to timely appeal that decision. The concerns addressed in

Brecheen , therefore, are not implicated.    See Moore , 153 F.3d at 1096-98 (holding

an ineffective assistance claim raised for the first time in a successive

post-conviction petition was procedurally barred despite      Brecheen ). Even if we

were to consider petitioner's ineffective assistance claim on its merits, however,

we would conclude he has failed to demonstrate the prejudice required by

Strickland v. Washington , 466 U.S. 668, 691-94 (1984).

       Petitioner’s application for a certificate of appealability is DENIED and

his appeal is DISMISSED.



                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




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