                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         APR 24 2003
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ELGIN MARCORA BROWN,

              Petitioner - Appellant,

 v.                                                     No. 02-6201
                                                  (D.C. No. 01-CV-1389-R)
 RANDY WORKMAN, Warden;                               (W.D. Oklahoma)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

              Respondents - Appellees.


                                        ORDER


Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.



      Elgin Marcora Brown seeks to appeal from the district court’s order

denying his petition for a writ of habeas corpus. This matter comes before us on

his application for a certificate of appealability (COA).

      Mr. Brown was convicted after a jury trial of possession of a controlled

dangerous substance with intent to distribute; unlawful possession of a firearm in

the commission of a felony; possession of a firearm; and unlawful possession of
cocaine, all after former conviction of one or more felonies. 1 The Oklahoma

Court of Criminal Appeals (OCCA) upheld his conviction on direct appeal, and

affirmed the state district court’s denial of post-conviction relief. The federal

district court denied habeas relief.

      Unless a COA is issued, we lack jurisdiction to consider Mr. Brown’s

appeal. Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003). A COA can issue

only “if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El,

123 S. Ct. at 1034. While Mr. Brown, in applying for a COA, is not required to

prove the merits of his case, he must demonstrate “something more than the

absence of frivolity or the existence of mere good faith on his . . . part.” Id. at

1040 (internal quotations omitted).




1
       These counts, charged in state case No. CRF-98-2, were tried at the same
time as separate counts charged in state case No. CRF-98-269. Mr. Brown was
also convicted on the counts charged in No. CRF-98-269. He filed a separate
petition for habeas corpus as to those counts, which the district court denied. We
denied a COA to appeal from the district court’s denial of his previous habeas
petition. Brown v. Workman , No. 02-6041, 49 Fed. Appx. 269 (10th Cir. 2002),
petition for cert. filed (U.S. Feb. 4, 2003) (No. 02-9232).

                                          -2-
      With these principles in mind, we have carefully reviewed the record of

these proceedings and the order of the district court. Each of Mr. Brown’s issues

were presented to the OCCA in his post-conviction appeal. The OCCA

determined, as to each, that Mr. Brown had failed to establish constitutionally

deficient performance by his appellate counsel. 2 We conclude that none of the

issues he raises justifies issuance of a COA.

      Mr. Brown contends his attorney should have argued that there was

insufficient evidence to convict him on Count III of the complaint and

information. Count III, felonious possession of a firearm, required the state to

prove as an element that Mr. Brown had previously been convicted of a felony.

See State R. at 152 (jury instruction); Okla. Stat. tit. 21, § 1283. Accordingly,

this count was not tried until the second stage of his trial. See Chapple v. State,

866 P.2d 1213, 1217 (Okla. Crim. App. 1993). During the second stage, the state

put on evidence concerning Mr. Brown’s prior felony convictions. It did not

present any evidence, however, on the other Count III elements: whether

Mr. Brown “knowingly and willfully . . . possess[ed] or ha[d] under [his]




2
       The OCCA’s decision on Mr. Brown’s application for post-conviction relief
does not appear in the appellate record in this case. It does appear, however, as
an attachment to the state’s brief in a related case in this court, No. 02-6041, from
where we obtained and reviewed it.

                                         -3-
immediate control [a] pistol or revolver.” State R. at 152. Nor did the state

expressly incorporate by reference the evidence presented during the first stage.

       During the first stage, the jury had convicted Mr. Brown on Count II,

possession of a firearm while committing a felony. The instruction on Count II

required the jury to find all the same possession elements required by Count III in

the second stage. State R. at 108. The jury was instructed to consider the

first-stage instructions in connection with its second-stage deliberations. Id. at

165. Even if it disregarded the first-stage evidence, all the jury had to do was

consider the Count II instruction, coupled with the completed first-stage verdict

form on that count, see id. at 87, to take notice that it had already made all the

necessary findings on the possession-related elements required by Count III.

Therefore, there was sufficient evidence before the jury to justify its verdict on

Count III. 3

       Mr. Brown next argues, relying on Pebworth v. State, 855 P.2d 605 (Okla.

Crim. App. 1993), that his attorney was ineffective in failing to argue that an

insufficient nexus existed between his possession of a firearm and the commission

of a felony. Mr. Brown exited the residence and was driving down the street

when officers stopped his car and returned him to the residence in connection


3
      We also note that at closing argument, the state directed the jury to
consider its first-stage verdict as evidence that the Count III possession elements
had been satisfied, without objection from Mr. Brown. Trial Tr. Vol. I at 297.

                                          -4-
with the search. Once inside the residence, Mr. Brown made incriminating

statements about the location of a gun and offered to lead the officers to drugs

contained in the residence.

      Pebworth was a fact-specific case, driven by the totality of the

circumstances, in which the OCCA found that the defendant had abandoned the

weapon, thereby severing any nexus between possession of the weapon and the

underlying felony. Id. at 607. The OCCA rejected Mr. Brown’s argument that his

attorney was ineffective in failing to argue for Pebworth’s application to the facts

of this case. Responsible jurists could not disagree that the OCCA’s

determination does not represent an unreasonable application of federal law or an

unreasonable application of the law to the facts. 28 U.S.C. § 2254(d). Mr. Brown

has not shown his entitlement to a COA on this issue.

      Finally, Mr. Brown contends that his appellate attorney should have argued

that the affidavit for search warrant in his case was not adequately corroborated.

The OCCA rejected this claim of ineffective assistance. The district court

concluded that under the circumstances of this case, a challenge to the sufficiency

of the warrant in the OCCA appeal would not have been successful. We agree.

Mr. Brown has not shown his entitlement to a COA on this issue.




                                         -5-
      This court DENIES Mr. Brown’s request for a COA, and DISMISSES this

appeal.



                                               Entered for the Court
                                               PATRICK FISHER, Clerk


                                          By: /s/A.J. Schuler
                                               Deputy Clerk




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