                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 31 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JIM LUMAN,

                Petitioner-Appellant,

    v.                                                  No. 95-5275
                                                    (D.C. No. 93-C-297-B)
    RON CHAMPION, in his official                        (N.D. Okla.)
    capacity as Warden; and THE STATE
    OF OKLAHOMA,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

         In his amended petition for writs of habeas corpus, petitioner Jim Luman

sought vacation of two convictions stemming from two separate cases in


*
      This order and judgment is not binding precedent, except under the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.
Oklahoma state court. The district court granted relief on one of the convictions,

attempted grand larceny after two or more felony convictions (case No.

CF-90-1277), on the basis that petitioner did not knowingly and intelligently

waive his right to counsel. Respondents have not appealed that determination.

The district court denied relief on the other conviction, knowingly concealing

stolen property after two or more felony convictions (case No. CF-89-1006), and

petitioner appeals pro se. We have jurisdiction under 28 U.S.C. § 1291 and

review the district court's factual findings for clear error and its legal conclusions

de novo, Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996). 1 We affirm.

      The general facts leading to petitioner’s conviction in case No. CF-89-1006

are not in dispute. On December 5, 1988, ninety-five boxes of meat were stolen

from the Monfort Food Distributing Company in Tulsa. The next day, petitioner

rented a refrigerated trailer in Tulsa. Later in December, petitioner traded boxes

of meat, which turned out to be some of the meat stolen from Monfort, to Hugh

Caraway and Wendell West in return for various items. West had picked up some

of the boxes of meat from the refrigerated trailer petitioner had rented.


1
       Respondents request that we apply the revised version of 28 U.S.C.
§ 2254(d) enacted as part of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214. AEDPA was signed into law on April
24, 1996. Petitioner filed his petition on April 6, 1993, and his notice of appeal
on December 18, 1995. We have previously ruled that under these circumstances,
the revised version of § 2254(d) does not apply. See Edens v. Hannigan, 87 F.3d
1109, 1112 n.1 (10th Cir. 1996).

                                          -2-
Investigation of the stolen meat focused on petitioner after the butcher to whom

Caraway took his boxes of meat became suspicious that it was stolen and

contacted Monfort. There was no direct evidence that petitioner knew the meat

was stolen, nor was there any evidence indicating who stole the meat from

Monfort.

      In March 1989, petitioner was charged with knowingly concealing stolen

property (the three boxes of meat he had traded to Caraway) after two or more

felony convictions. A jury found him guilty, and he was sentenced to thirty years’

imprisonment. The conviction was affirmed on direct appeal in an unpublished

decision. In post-conviction proceedings, which included an evidentiary hearing

on petitioner’s claim of ineffective assistance of trial counsel, state courts denied

relief. Petitioner then brought this action seeking habeas relief. On appeal, he

contends that (1) he received ineffective assistance of counsel because his counsel

failed to adequately investigate his case and prepare for trial and because counsel

failed to object to testimony by his probation officer; (2) the trial court

improperly communicated ex parte with a juror; and (3) he was denied his right to

cross-examine a witness. 2


2
       On appeal, petitioner claims that his counsel was also ineffective during
preliminary proceedings. However, petitioner did not raise this argument in the
district court, and we will not consider it on appeal. We reject his contention that
his brief passing mention of his counsel’s actions during preliminary proceedings
                                                                       (continued...)

                                          -3-
      To prevail on a claim of ineffective assistance of counsel, petitioner must

prove both that his counsel’s performance was deficient, that is, fell below an

objective standard of reasonableness, and that this deficiency prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

“Reasonableness is evaluated under prevailing professional norms and is

considered in light of all the circumstances.” Edens, 87 F.3d at 1114. Based on

evidence that counsel failed to meet with any witnesses or petitioner’s

investigator before trial, the district court found that counsel completely abdicated

his duty to investigate and that his performance was thus deficient in this regard.

However, the court concluded that petitioner had not shown that he was

prejudiced by the failure to investigate.

      We agree with the district court that petitioner has not demonstrated that he

was prejudiced by his counsel’s failure to investigate. When an ineffective

assistance claim centers on a failure to investigate and elicit testimony from

witnesses, the petitioner must “demonstrate, with some precision, the content of

the testimony they would have given at trial.” Lawrence v. Armontrout, 900 F.2d

127, 130 (8th Cir. 1990) (quotation omitted). Though many of the defense


2
 (...continued)
in his amended petition’s statement of facts--without any argument that these
actions were ineffective--is sufficient to preserve the issue for review. See
Rademacher v. Colorado Ass’n of Soil Conservation Dists. Medical Benefits Plan,
11 F.3d 1567, 1571-72 (10th Cir. 1993).

                                            -4-
witnesses who testified at petitioner’s trial also testified at the post-conviction

evidentiary hearing or submitted affidavits indicating that counsel did not

interview them prior to trial, petitioner does not identify what testimony they

could have given had counsel’s performance not been deficient. Instead,

petitioner contends only that “important potential testimony would have been

discovered” had his counsel interviewed witnesses before trial, Appellant’s Br. at

11, and that “it is impossible to second guess just what [witness Michaelberg]

could have testified to had [counsel] fulfilled his duty to make reasonable

investigations,” id. at 10.

      By failing to show what testimony the witnesses could have given,

petitioner cannot show that there is a reasonable probability that but for counsel’s

deficient performance, the result of the trial would have been different. See

Strickland, 466 U.S. at 694. Moreover, we reject petitioner’s attempt to avoid his

burden of showing prejudice by contending “counsel entirely fail[ed] to subject

the prosecution’s case to meaningful adversary testing.” United States v. Cronic,

466 U.S. 648, 659 (1984). Though counsel’s performance in failing to investigate

was deficient, it was not so deficient that prejudice can be presumed. See Houchin

v. Zavaras, No. 96-1187, 1997 WL 81157, at *6 (10th Cir. Feb. 27, 1997).

      Petitioner also claims his counsel was ineffective for failing to assert the

proper objection to testimony by his federal probation officer, Rod Baker.


                                          -5-
Petitioner was on probation at the time he traded meat to West and Caraway.

Though Baker was not allowed to state that he was a probation officer, he was

allowed to testify that petitioner was obligated to report to him specific details of

his business activities including income, and that he had reported trading

activities in the past. Baker then testified that during the relevant period,

petitioner did not report any trades of meat. The prosecutor argued in closing that

the failure to report the meat trades when he was obligated to do so was evidence

petitioner knew the meat was stolen. Petitioner contends that his counsel was

ineffective for failing to object to this testimony on the basis that it was an

improper comment on his Fifth Amendment right to remain silent. He also

contends counsel was ineffective for failing to cross-examine Baker.

      In certain circumstances, counsel’s failure to assert a proper objection may

constitute deficient performance. See United States v. Kissick, 69 F.3d 1048,

1056 (10th Cir. 1995) (finding counsel’s performance deficient for failure to raise

“dead-bang winner” objection in sentencing hearing); Mason v. Scully, 16 F.3d

38, 44 (2d Cir. 1994); Chatom v. White, 858 F.2d 1479, 1485-86 (11th Cir. 1988).

The initial question here is whether petitioner’s Fifth Amendment objection

would have been proper, that is, would it likely have been successful and

sustained. Cf. Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (failure of

appellate counsel to raise meritless issue not deficient performance); United


                                          -6-
States v. Dixon, 1 F.3d 1080, 1083 n.5 (10th Cir. 1993) (same; also noting that

counsel’s performance not necessarily deficient “whenever he fails to raise a

claim which is ultimately determined to have had merit”).

      Petitioner essentially contends that he had a Fifth Amendment right not to

incriminate himself by telling Baker he was trading stolen property. See

Minnesota v. Murphy, 465 U.S. 420, 426-28 (1984). Therefore, he continues,

Baker’s testimony was an unconstitutional comment on his prearrest silence. The

prosecution did not use Baker’s testimony to impeach petitioner, as petitioner did

not testify. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (prearrest,

pre-Miranda silence may be used to impeach defendant’s testimony). Instead, the

prosecution used petitioner’s silence as evidence of guilt. The Supreme Court has

not yet ruled on whether pre-Miranda or prearrest silence as substantive evidence

is protected by the Fifth Amendment, see id. at 236 n.2 (reserving issue), and the

circuits are split on this issue, see United States v. Thompson, 82 F.3d 849, 855

(9th Cir. 1996) (collecting cases).

      We must assess counsel’s performance by what he reasonably should have

known, including the state of the law, at the time of trial. See Coleman v. Saffle,

869 F.2d 1377, 1394 n.15 (10th Cir. 1989); Elledge v. Dugger, 823 F.2d 1439,

1442-43, modified on reh’g, 833 F.2d 250 (11th Cir. 1987). Petitioner was tried

in May 1990. At that time, it was not clear whether Oklahoma courts would allow


                                         -7-
admission of evidence of prearrest silence. Compare Farley v. State, 717 P.2d

111, 112-13 (Okla. Crim. App. 1986), with Royal v. State, 761 P.2d 497, 500-01

(Okla. Crim. App. 1988). In this circuit, evidence of pre-Miranda silence was

admissible as evidence of guilt. See United States v. Harrold, 796 F.2d 1275,

1278-79 (10th Cir. 1986) (approving admission of defendant’s pre-Miranda

invocation of right to remain silent in meeting with IRS officers); but see United

States v. Sasser, 974 F.2d 1544, 1558-59 (10th Cir. 1992) (finding evidence of

prearrest failure to comply with subpoena, compliance with which may have

compelled defendant to incriminate himself, inadmissible under the Fifth

Amendment); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991)

(finding prearrest silence inadmissible as evidence of guilt). Because the success

of a Fifth Amendment objection in this case is questionable, we cannot say that

petitioner’s counsel’s failure to assert the objection amounted to deficient

performance. See Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993)

(performance not deficient where counsel fails to forecast changes or advances in

the law).

      We also agree with the district court that counsel’s failure to cross-examine

Baker was not deficient performance. Petitioner contends that counsel could have

elicited testimony that his trades did not generate income and that he therefore

had no obligation to report the trades to Baker. Petitioner is speculating what


                                         -8-
cross-examination could have revealed, and we do not agree that trades

necessarily do not generate income. Moreover, cross-examination could have

emphasized Baker’s testimony. We do not find counsel’s failure to cross-examine

objectively unreasonable.

      Petitioner next contends that the trial court erred by communicating ex

parte with a juror regarding the juror’s possible prejudice or bias. After the

prosecution had completed presentation of its case on the first day of trial, a juror

sent word to the judge that she had seen news accounts regarding petitioner’s

involvement in a different trial then proceeding in federal court in Tulsa. 3 The

judge met the juror in chambers, with a court reporter but without counsel or

petitioner in attendance, to find out what she had heard or seen. She said she had

seen what appeared to be a sketch of petitioner on the television news the

previous evening, but did not hear what was being said about him and paid no

more attention. Then during a break in proceedings that morning, she was

reading a newspaper article about the Abello-Silva trial and read that petitioner

was going to be a witness in that trial. At that point she stopped reading the

article and reported the incident to the bailiff. She told the judge that she did not



3
      Petitioner was scheduled to be a witness in the drug trafficking trial of Jose
Abello-Silva. We noted in Abello-Silva’s appeal from his convictions that there
had been pretrial publicity in that case. See United States v. Abello-Silva, 948
F.2d 1168, 1177-78 (10th Cir. 1991).

                                          -9-
read any “details” about petitioner’s being a witness. 4 She also stated that during

a supplemental voir dire that morning, when petitioner’s counsel asked whether

any jurors had seen or heard anything in the media about petitioner, it did not

register that she had seen the sketch of petitioner the previous evening. The juror

said she had not mentioned this incident to the other jurors and told the judge that

she thought she could continue as a juror and decide the case on the facts.

      The judge then met with the counsel and “discussed with both attorneys the

nature of the discussion that I’ve had with the juror,” Trial Tr., Vol. II at 136,

though this discussion was apparently not recorded and transcribed. The judge

said that he thought the juror could continue to sit and allowed petitioner’s

counsel to question the juror. Counsel declined, and the case proceeded.

      Petitioner contends that the judge’s ex parte communication with the juror

violated his Sixth Amendment right to an “open and public trial” and apparently

his right to be present during all proceedings. He also contends that this type of

error is not subject to harmless error analysis, or if it is, that respondents have not

met their burden of showing harmlessness beyond a reasonable doubt as required

by Chapman v. California, 386 U.S. 18 (1967).


4
       According to petitioner, the newspaper article she read indicated that he
was a felon who had spent time in jail with an Abello-Silva coconspirator.
Petitioner contends that the juror may also have read an article in the previous
day’s paper providing more details of his criminal history, but there is no
evidence that she read that article.

                                         -10-
      Contrary to petitioner’s contention, any error that may have occurred here

is a trial error that is subject to harmless error analysis. See Rushen v. Spain, 464

U.S. 114, 117-20 (1983); Yarborough v. Keane, 101 F.3d 894, 896-98 (2d Cir.

1996), petition for cert. filed, (U.S. March 10, 1997) (No. 96-8189); Hegler v.

Borg, 50 F.3d 1472, 1476-77 (9th Cir.), cert. denied, 116 S. Ct. 675 (1995).

Moreover, because this issue arises on habeas, we apply not Chapman’s test for

harmlessness, but instead the harmlessness test of Brecht v. Abrahamson, 507

U.S. 619 (1993). See Yarborough, 101 F.3d at 899; Hegler, 50 F.3d at 1477-78.

Under Brecht, a habeas petitioner challenging a trial error is entitled to relief only

if the error had a “substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)).

      On review of the record, we agree with the district court that the judge’s ex

parte communication with the juror was harmless. The juror stated that she

learned that petitioner was a witness in the other trial, but not any facts about

petitioner’s criminal past. Immediately after talking with the juror, the judge

informed counsel of the discussion and allowed petitioner’s counsel to question

her, an opportunity he declined. In an affidavit submitted after trial, petitioner’s

counsel stated that the trial judge only informed him that the juror had seen the

newspaper article, not that she had also seen his picture on the television news,


                                         -11-
and that had he known this latter fact, he would have cross-examined her.

Additionally, petitioner appears to contend that his counsel was ineffective for

failing to examine her in any event. Though it may have been better practice for

the judge to have allowed counsel to read a transcript of his meeting with the

juror and to have recorded his discussion with counsel about that meeting, it is

clear he informed counsel of the substance of his meeting. Moreover, it was

objectively reasonable for counsel not to have cross-examined the juror, an action

that could well have been counterproductive. See United States v. Santiago, 977

F.2d 517, 522-23 (10th Cir. 1992).

      Finally, petitioner contends that the trial court violated his right to call

and/or confront witnesses when it refused to allow a witness to testify because of

a violation of the rule of sequestration. The witness, Wendell West, had testified

for the prosecution and had been cross-examined by petitioner’s counsel. At the

close of the prosecution’s case, the prosecutor invoked the rule. After trial

recessed for the day, petitioner telephoned West and asked him to check his

records on several points covered by his testimony. He also told West that Alan

Elias would be called as a witness the next day and told him what Elias’s

testimony would be. When counsel called West as a witness the next day, the

prosecutor objected on the basis that the rule had been violated. After West was




                                         -12-
questioned about his conversation with petitioner, the court determined that the

rule had been violated and barred West from testifying.

      We agree with the district court that even if the trial court committed some

type of constitutional error--and we by no means intend to imply that it did--any

error was patently harmless. West testified that he first discussed a meat trade

with petitioner around December 16 to 19, 1988, and on cross-examination said it

could have been on December 21 or 22. His “clarified” testimony would have

been that this discussion occurred around December 21 to 23. Petitioner fails to

explain, nor do we see, any significance to this clarification. West also testified

that petitioner contacted him in May or June 1989 to tell him that the meat may

have been stolen. The “clarified” testimony would have been that he “was

possibly contacted by [petitioner] within the first two weeks of March, 1989.”

Exhibits in Support of Petitioner’s Br., Ex. P at 3 (emphasis added). 5 The

information charging petitioner with the offense was filed in early March 1989.

Thus, at most the inference from this “clarified” testimony could have been that

petitioner possibly warned West about the meat being stolen a few days prior to

his being charged. Had this testimony been allowed, the prosecutor certainly



5
       We note that in his brief, petitioner stated that this contact occurred in “the
latter part of March,” Appellant’s Br. at 33, and that in his offer of proof at trial,
counsel stated that this contact occurred in April or early May, 1989, Trial Tr.
Vol. II at 179.

                                         -13-
would have brought out on cross-examination that West did not recall this

testimony until after petitioner contacted him. In light of his earlier testimony in

which he twice stated that the event occurred in May or June, the “clarified”

testimony would not have had much probative force, and we cannot say that its

exclusion had a “substantial and injurious effect” on the outcome of the trial. See

Brecht, 507 U.S. at 623.

      The judgment of the district court is AFFIRMED. Petitioner’s motion for

appointment of counsel is DENIED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




                                         -14-
