                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 29 1999
                            FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    MATTHEW JAMES HAMPTON,

                Petitioner-Appellant,

    v.                                                     No. 98-5114
                                                     (D.C. No. 96-CV-470-E)
    H. N. SCOTT, aka Sonny Scott,                          (N.D. Okla.)

                Respondent-Appellee.




                            ORDER AND JUDGMENT             *




Before BALDOCK , BARRETT , and HENRY , 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        This order and judgment is not binding precedent, except under the doctrines of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, appearing pro se, seeks a certificate of appealability in order to

appeal the district court’s denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2254, upon determining the claims were procedurally barred. The

district court granted leave to appeal in forma pauperis; we have jurisdiction

under 28 U.S.C. § 1291. Because petitioner has failed to make a “substantial

showing of the denial of a constitutional right,” we deny his application for a

certificate of appealability and dismiss this appeal.       28 U.S.C. § 2253(c)(2).


                                   Standard of Review

       We review the district court’s legal conclusions de novo and its factual

findings under the clearly erroneous standard.          See Castro v. Oklahoma , 71 F.3d

1502, 1510 (10th Cir. 1995). “On habeas review, this court will not consider

issues 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.”        Hickman v. Spears , 160 F.3d 1269,

1271 (10th Cir. 1998) (citing     Coleman v. Thompson , 501 U.S. 722, 749-50

(1991)). We review petitioner’s claims of ineffective assistance of counsel

de novo. See Hoxsie v. Kerby , 108 F.3d 1239, 1245 (10th Cir. 1997).




                                             -2-
                                  State Trial Proceedings

       Petitioner was convicted, following a jury trial, of unlawful delivery of

cocaine, failure to obtain a drug stamp, and unlawful possession of crack cocaine,

all after former conviction of two or more felonies. His consecutive sentences

totaled seventy-six years. On direct appeal, represented by new counsel,

petitioner raised four issues: (1) introduction without advance notice of evidence

of other crimes; (2) prejudice caused by the revocation of bail at the end of the

first day of trial; (3) denial of the effective assistance of trial counsel;   1
                                                                                   and

(4) excessive punishment imposed by the jury.            See R. Doc. 8, ex. D at 5-9. The

Oklahoma Court of Criminal Appeals affirmed the convictions and sentences in

all respects.   R. Doc. 8, ex. G, Opinion.




1
       The alleged ineffectiveness consisted of (1) waiver of opening statements
during guilt and sentencing stages of proceedings; (2) failure to object both to
other crimes evidence offered by the state and to inappropriate arguments by
opposing counsel; (3) failure to cross-examine particular witnesses during the
second stage of the proceedings; (4) improper reference to a gun in closing
argument in the first stage of the proceedings; (5) failure to make closing
arguments in the second stage of the proceedings; (6) failure to object to jury
instructions; and (7) failure to conduct pretrial discovery or meaningful plea
negotiations. See R. Doc. 8, ex. D at 7-8.

                                               -3-
                      State Court Post-Conviction Proceedings

        Petitioner then filed a pro se application for post-conviction relief, claiming

that his sentence was illegally enhanced under Okla. Stat. tit. 21, § 51(B) because

his prior convictions arose out of the same transaction. He also contended he

should have been sentenced under Okla. Stat. tit. 63, § 2-402.       2
                                                                         He also claimed

the jury was erroneously instructed, during the second phase of the proceedings,

on the presumption of innocence and on the prosecutor’s burden of proof in

violation of Flores v. State , 896 P.2d 558 (Okla. Crim. App. 1995). With respect

to these errors he alleged ineffectiveness of both trial and appellate counsel in

failing to raise these issues.

        The Oklahoma Court of Criminal Appeals did not specifically address

petitioner’s claim that   trial counsel was ineffective for failing to raise the

sentencing enhancement and jury instruction issues, except to note that those

issues were not raised on direct appeal. Instead, the court ruled that counsel      3



was not ineffective by the mere fact that counsel failed to recognize either the

factual or legal basis for a constitutional claim, or failed to raise the claim if


2
       The Oklahoma Court of Criminal Appeals ruled against petitioner on the
merits of this claim. Because petitioner did not brief the issue on appeal to this
court, we will not address it further.
3
        It is simply not clear whether the court meant trial or appellate counsel, or
both.

                                            -4-
recognized. See R. Doc. 8, ex. G, Opinion at 2 (citing        Webb v. State , 835 P.2d

115, 116 (Okla. Crim. App. 1992) and        Murray v. Carrier , 477 U.S. 478, 486

(1986)). The court then determined that because petitioner had failed to show

that “some external impediment prevented him, or his appellate counsel, from

constructing or raising a claim,” petitioner had bypassed or waived the issues.

See R. Doc. 8, ex. G, Opinion at 2-3.


                               Federal Court Proceedings

       Petitioner then filed his petition for writ of habeas corpus under 28 U.S.C.

§ 2254. In denying the petition, the district court determined that petitioner’s

claims were defaulted because they were not raised on direct appeal and that the

Oklahoma Court of Criminal Appeals had declined to review them for that reason.

The court then held that petitioner had failed to show cause and prejudice for the

default. The “cause” element was not met because the court found that trial and

appellate counsel were not ineffective for failing to object to the use of

petitioner’s prior convictions to enhance his sentence.

       The court also determined that trial and appellate counsel were not

ineffective for failing to raise the jury instruction issue because     Flores does not

apply to instructions given during the sentencing stage of the proceedings.

Finally, the court held petitioner had failed to establish a claim of actual

innocence entitling him to habeas relief.

                                              -5-
                                       Discussion

       On appeal petitioner raises the same issues he raised in district court. The

focus here, however, is whether petitioner was denied the effective assistance of

counsel guaranteed by the Sixth Amendment. We have held that “[a] habeas

petitioner may establish cause for his procedural default by showing that he

received ineffective assistance of counsel.”         Banks v. Reynolds , 54 F.3d 1508,

1514 (10th Cir. 1995) (citing,    inter alia , Murray , 477 U.S. at 488-89)). Although

the failure to raise a claim during trial or on direct appeal generally will preclude

federal habeas review of the merits of the claim absent a showing of either cause

and prejudice or a fundamental miscarriage of justice, when the underlying claim

is ineffective assistance of counsel, the general rule must give way because of

concerns unique to ineffective of trial counsel assistance claims.       See Brecheen v.

Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994). Thus, failure to raise an

ineffectiveness of trial counsel claim on direct review does not preclude federal

habeas review because of procedural bar.

       In English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998), we held that

“the Oklahoma bar will apply in those limited cases meeting the following two

conditions: trial and appellate counsel differ; and the ineffectiveness claim can

be resolved on the trial record alone. All other ineffectiveness claims are

procedurally barred only if Oklahoma’s special appellate remand rule for

                                               -6-
ineffectiveness claims is adequately and evenhandedly applied.” Here, although

trial and appellate counsel were different, we do not have the entire trial record.

Moreover, a claim of ineffective appellate counsel is a separate issue. We will

therefore consider the merits of petitioner’s claims.     See Miller v. Champion , 161

F.3d 1249, 1252 (10th Cir. 1998). “To establish a claim for ineffective assistance

of counsel, a defendant must show that (1) his counsel’s performance was

constitutionally deficient, and (2) counsel’s deficient performance was

prejudicial.” Banks , 54 F.3d at 1515 (quotation omitted).

       If a petitioner alleges that his appellate counsel was ineffective for failing

to raise an issue on appeal, we will examine the merits of the omitted issue.        See

id. In addition, “an appellate advocate may deliver deficient performance and

prejudice a defendant by omitting a ‘dead-bang winner,’ even though counsel may

have presented strong but unsuccessful claims on appeal.”        United States v. Cook ,

45 F.3d 388, 395 (10th Cir. 1995). We have described a “dead-bang winner”

issue as one which is obvious from the record, leaping out on even a casual

reading and one which would have resulted in reversal on appeal.         See id. A

habeas petitioner bears the burden of establishing that his appellate counsel

omitted such an issue.    See Parker v. Champion , 148 F.3d 1219, 1221 (10th Cir.

1998), cert. denied, 119 S. Ct. 1053 (1999).




                                             -7-
       Petitioner first claims that his trial attorney erred in not challenging the

convictions used to enhance his sentence under Okla. Stat. tit. 21, § 51, which

reads in pertinent part:

       B. Every person who, having been twice convicted of felony
       offenses, commits a third, or thereafter, felony offenses within ten
       (10) years of the date following the completion of the execution of
       the sentence, shall be punished by imprisonment in the State
       Penitentiary for a term of not less than twenty (20) years. Felony
       offenses relied upon shall not have arisen out of the same transaction
       or occurrence or series of events closely related in time and
       location. . . .

       Petitioner contends that the two felonies used to enhance his sentence arose

from the same transaction. We have held that a trial attorney’s failure to object to

the use of a “facially insufficient” prior conviction for purposes of classifying a

defendant as a career offender constitutes deficient representation.       See United

States v. Kissick , 69 F.3d 1048, 1056 (10th Cir. 1995). Here, however, the prior

convictions, one for unlawful delivery of a controlled drug and the other for

assault and battery on a police officer, are not   facially insufficient. That the

judgments were entered in the same case number on the same date does not

necessarily establish that they arose out of the same transaction.      See, e.g. ,

Rackley v. State , 814 P.2d 1048, 1050 (Okla. Crim. App. 1991) (holding fact that

charges were similar, pleas to crimes were entered same day, or that case numbers

were consecutive not sufficient proof that crimes were related);       Cobb v. State ,

773 P.2d 371, 372 (Okla. Crim. App. 1989) (holding arrest for possession of

                                             -8-
stolen vehicle and subsequent discovery that defendant possessed controlled drug

insufficient to establish interrelated convictions prohibited by § 51(B));     Vowell v.

State , 728 P.2d 854, 859 (Okla. Crim. App. 1986) (finding closeness of case

numbers and plea of guilty to both on same day insufficient to meet plaintiff’s

burden of presenting evidence that convictions arose from same transaction or

occurrence).

       Thus a reasonable and competent attorney could have concluded that use of

these prior convictions did not violate the statute. Therefore, petitioner has failed

to show that his trial attorney made an error “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland v. Washington , 466 U.S. 668, 687 (1984). As the issue was not

a dead-bang winner, appellate counsel was not ineffective for failing to raise

it, either.

       Next, petitioner claims that the trial court’s instruction during the second

stage of the proceedings on the presumption of innocence violated the rule

established in Flores , 896 P.2d at 562-63, holding the trial court erred in

instructing jury that a defendant is presumed “not guilty” of a crime, instead of

“presumed innocent,” and in requiring the state to prove “all the material

allegations contained in the [i]nformation” instead of “each element of the

crime,” beyond a reasonable doubt. The instruction given in petitioner’s case,


                                             -9-
which contained both these charges, was virtually identical to those found infirm

by the Flores court.

       At the time of petitioner’s trial,     Flores had not been decided. Moreover,

the Flores court found the distinction between the presumption of innocence and

the presumption of not guilty to be a “subtle” one.         Id. at 562. The court also

concluded the “material allegations” versus “each element of the crime”

difference to be “not as troubling as the presumption of innocence instruction,”

but rather potentially “confusing.”         Id. at 563. Trial counsel’s failure to discern

either a subtle distinction or potential confusion does not rise to the level of

constitutionally ineffective assistance.

       In a case similar to this,   where the appeal had been perfected and submitted

at the time the Flores opinion was issued, we held that “appellate counsel was not

required to anticipate that the     Flores court would hold unconstitutional an

instruction using the form of words ‘presumed not guilty,’” and that the petitioner

had therefore failed to demonstrate that he received ineffective assistance of

counsel. See Burton v. Martin , No. 98-7034, 1998 WL 694531, at **2 (10th Cir.

Oct. 6, 1998) (unpublished order and judgment). “Given the absence of specific

contrary authority, counsel was entitled to rely on general principles which

provide that an instruction using the particular phrase ‘presumption of innocence’

is simply one means of protecting an accused’s constitutional right to be judged


                                                -10-
solely on the basis of proof adduced at trial.”     Id. ; see also De Yonghe v. Scott ,

No. 97-5062, 1998 WL 166075, at **3 (10th Cir. Apr. 10, 1998) (holding that

neither trial nor appellate counsel were ineffective for failing to raise    Flores issue

where Flores was decided after petitioner’s trial and direct appeal were complete)

(unpublished order and judgment),       cert. denied, 119 S. Ct. 378 (1998).

       For the same reasons, the failure of trial and appellate counsel to challenge

the use of the phrase “all material allegations” with respect to the state’s burden

of proof fails to establish ineffectiveness of either counsel.       See De Yonghe ,

1998 WL 166075, at **4-5.

       The record reflects that petitioner’s direct appeal brief was filed on

February 2, 1994, a full eleven months before        Flores was decided. Petitioner’s

contention that after   Flores was decided, counsel should have filed a supplemental

brief addressing the issue is also without merit. The opinion in his direct criminal

appeal was filed August 17, 1995. At that time, Okla. Court Crim. App. Rule

3.4(F)(2) allowed supplemental briefing to present new authority only on issues

previously raised. Propositions of error raised for the first time would not be

considered.

       The current version of Rule 3.4(F)(2), which does permit the raising of new

propositions of error on issues of first impression decided after the filing of an

opening brief but before the case is decided, did not become effective until


                                             -11-
November 1, 1995. Thus, appellate counsel cannot be faulted for failing to file

a supplemental brief.   See Burton , 1998 WL 694531, at **1.

       Finally, petitioner contends he is actually innocent of his enhanced

sentence. In Selsor v. Kaiser , 22 F.3d 1029, 1036 (10th Cir. 1994), we held that

“[i]n a habitual offender case, the petitioner is actually innocent of the sentence

if he can show he is innocent of the fact--    i.e. , the prior conviction--necessary

to sentence him as an habitual offender.” Petitioner here does not claim factual

innocence of the prior convictions, but merely that he is innocent of having

two convictions meeting the requirements of the enhancement statute. “In any

event, actual innocence of the sentence still requires a showing of      factual

innocence.” Id.

       Because petitioner has failed to make a substantial showing of the denial of

a constitutional right, we DENY the application for a certificate of probable cause

and DISMISS the appeal.

                                                         Entered for the Court

                                                         James E. Barrett
                                                         Senior Circuit Judge




                                              -12-
