                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2004
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    EUGENE ROBERT SNYDER,

                  Petitioner-Appellant,

    v.                                                    No. 03-6050
                                                    (D.C. No. 02-CV-1214-C)
    MIKE ADDISON, Warden;                                 (W.D. Okla.)
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE and McKAY , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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-appellant Eugene Robert Snyder was convicted by an Oklahoma

state court jury of robbery with a firearm after former conviction of two or more

felonies, and he received a twenty-year prison sentence. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed petitioner’s conviction and sentence on direct

appeal. Subsequently, the OCCA also affirmed the denial of petitioner’s

application for post-conviction relief. Pursuant to 28 U.S.C. § 2254, petitioner

then filed a petition for a writ of habeas corpus in the United States District Court

for the Western District of Oklahoma.

      Following the district court’s denial of his habeas petition, petitioner filed

the instant pro se appeal in this court. We granted petitioner a certificate of

appealability (COA) with respect to the following issues:

      Whether petitioner received state-induced ineffective assistance of
      trial counsel in light of the trial court’s refusal to grant a
      continuance, and/or ineffective assistance of counsel, irrespective of
      state conduct, when trial counsel failed to adhere to Oklahoma
      procedural rules in moving for a continuance.

Order filed August 1, 2003 at 1-2.   1
                                         We conclude that petitioner has failed to

establish that he is entitled to habeas relief based on his claims that he received

ineffective assistance of trial counsel. Accordingly, we affirm the denial of

petitioner’s habeas petition.


1
       We previously entered a separate order denying petitioner’s application
for a COA with respect to four other issues. See Order filed on August 11, 2003
at 1-2.

                                             -2-
                                            I.

       Petitioner was charged under Oklahoma law with robbing Warren Watkins

and Tom Purtell on February 5, 2000. The robbery allegedly occurred inside

petitioner’s residence after a dispute arose over money that Purtell allegedly owed

petitioner. According to Watkins and Purtell, another individual, Jimmy Don

“Cracker” Wilson, ordered them to kneel on the floor and empty their pockets,

and petitioner facilitated the robbery by brandishing a gun.

       Petitioner’s preliminary hearing took place on March 14, 2000, and he was

arraigned on March 16. Although petitioner’s trial was initially set to commence

on an unspecified date during a trailing docket that began on April 3,   see S.R. at

22, 182, 2 the trial judge who presided over petitioner’s arraignment “assured trial

counsel that [petitioner’s] trial would not commence before April 10th.” F.R.,

Doc. 11, Ex. C (summary opinion of OCCA on direct appeal) at 2 n.1.

Nonetheless, on Friday, March 31, petitioner’s trial counsel was informed by the

trial judge who was to preside over petitioner’s trial that the trial was to

commence on Monday, April 3.

       During a pretrial conference on the morning of April 3, petitioner’s trial

counsel moved for a continuance of the trial on the ground that he was unprepared


2
       As used herein, “S.R.” refers to the state-court record; “S.T.” refers to the
state-court trial transcript; and “F.R.” refers to the record of the federal district
court.

                                            -3-
to proceed because: (1) as noted above, he had previously been informed by

another judge that petitioner’s trial would not commence until April 10; and (2)

while a transcript of the preliminary hearing had been filed with the trial court on

March 31, he did not received his copy of the transcript until the morning of April

3, and he therefore had “not really had a chance to adequately even go over the

transcript, much less get prepared to call any kind of witnesses that might be

helpful in a meaningful defense for Mr. Snyder.” S.T. at 14. Petitioner’s trial

counsel also asserted that petitioner was “being denied effective assistance of

counsel for not being able to adequately prepare in violation of his Sixth and

Fourteenth Amendment Rights of the United States Constitution.”             Id. After

noting that the case had been placed on a trailing docket, and that, as a result, the

case had not been set for a “date and time certain,”       id. at 15, the trial judge

denied the motion for a continuance, stating that “today is the first day of the jury

term. I chose to try [this case] the first day,”     id.

       Petitioner’s two-day, two-stage, jury trial commenced immediately

following the court’s denial of the motion for a continuance. During the trial,

petitioner’s trial counsel participated in jury selection; he gave a brief opening

statement; he objected to evidence presented by the prosecution; he




                                               -4-
cross-examined the prosecutions’ three witnesses, which included impeaching

Watkins and Purtell with statements they made to the police; he presented two

witnesses on behalf of petitioner; and he gave closing arguments.        3



                                             II.

       A. Claims at Issue in This Appeal.

       Relying on the Supreme Court’s decisions in         United States v. Cronic , 466

U.S. 648 (1984) and     Bell v. Cone , 535 U.S. 685 (2002), petitioner claims that he

received state-induced ineffective assistance of trial counsel because, by denying

his trial counsel’s motion for a continuance, the trial court forced his counsel to

go to trial unprepared. In accordance with         Cronic and Bell , petitioner claims that

he is therefore entitled to a presumption of prejudice.

       Alternatively, relying on    Strickland v. Washington , 466 U.S. 668 (1984),

petitioner claims that he received ineffective assistance from his trial counsel

because counsel’s performance at trial was deficient and he was prejudiced by his

counsel’s deficient performance. Although this court’s COA order did not

explicitly include petitioner’s    Strickland claim, the claim is closely related to

petitioner’s state-induced ineffective assistance claim under        Cronic and Bell . We

also note that respondents have addressed the merits of petitioner’s         Strickland


3
       During his trial, petitioner was represented by two court-appointed
attorneys from the Oklahoma Indigent Defense System. To simplify matters, we
will refer to petitioner’s trial counsel only in the (masculine) singular.

                                             -5-
claim in the brief they filed in response to the COA order.    See Aplee. Br. at 6-

14. 4 Thus, we liberally construe the grant of COA to include petitioner’s

Strickland claim.

       The grant of COA also includes the specific issue of whether petitioner’s

trial counsel was ineffective in failing “to adhere to Oklahoma procedural rules in

moving for a continuance.” Order filed on August 1, 2003 at 1-2. We do not

need to separately address this issue, however, because it is subsumed within the

issue of counsel’s deficient performance under      Strickland , and we conclude that

even if counsel’s performance was deficient, petitioner’s     Strickland claim fails

since he has not made a sufficient showing of prejudice arising from the denial of

his motion for a continuance.     Cf. Warner v. State , 29 P.3d 569, 575 (Okla. Crim.

App. 2001) (holding that defendant received ineffective assistance from his trial

counsel where counsel’s performance was deficient because he failed to file a

written motion for a continuance and a supporting affidavit as required by Okla.




4
       In its order affirming the denial of petitioner’s application for post-
conviction relief, the OCCA concluded that petitioner was procedurally barred
from asserting his standard (or non-state induced) ineffective assistance of trial
counsel claim because he had waived it by failing to assert it on direct appeal.
See F.R., Doc. 11, Ex. I at 1-2. In this appeal, however, respondents do not argue
procedural bar. “In light of the State’s waiver, this court may consider the claim
on its merits without addressing procedural bar.”    James v. Gibson , 211 F.3d 543,
557 (10th Cir. 2000).

                                            -6-
Stat. tit. 12, § 668, and the deficient performance prejudiced defendant under

Strickland ).

       B. Ineffective Assistance of Counsel Claims.

                1. Standards of Review.

       The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs whether petitioner may obtain federal habeas relief. Under AEDPA, if

petitioner’s ineffective assistance claims were adjudicated on the merits in state

court, he is not entitled to federal habeas relief with respect to any legal issues

unless he can establish that the state court decision was “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). This limitation

on our review is known as “AEDPA deference.”

       “Under the ‘unreasonable application’ clause, a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle

from [the Supreme Court’s] decisions but unreasonably applies that principle to

the facts of the prisoner’s case.”   Williams v. Taylor , 529 U.S. 362, 413 (2000)

(O’Connor, J., concurring). “‘Unreasonableness’ is gauged by an objective

standard.” Miller v. Mullin , 354 F.3d 1288, 1292 (10th Cir. 2004) (quotation

omitted). As a result, “[i]t is not sufficient if the state court decision applied

clearly established federal law erroneously or incorrectly; the application must be


                                           -7-
objectively unreasonable.”     Paine v. Massie , 339 F.3d 1194, 1198 (10th Cir.

2003).

         In its summary opinion affirming petitioner’s conviction on direct appeal,

the OCCA stated that it found “no state induced ineffectiveness of [trial]

counsel,” and the OCCA cited      Strickland to support its conclusion. F.R., Doc. 11,

Ex. C (summary opinion of OCCA on direct appeal) at 2. Consequently, the

OCCA adjudicated petitioner’s state-induced ineffective assistance claim on the

merits. Further, because     Strickland recognized the principle that state

interference with counsel’s assistance is legally presumed to result in prejudice in

certain Sixth Amendment contexts,      see Strickland , 466 U.S. at 692 (citing   Cronic ,

466 U.S. at 659 & n.25), the OCCA identified the correct governing legal

principle from the Supreme Court’s decisions, and the fact that it did so in a

summary opinion is immaterial for purposes of AEDPA deference.             See Paine ,

339 F.3d at 1198. Consequently, we must conduct an independent review of the

record and pertinent federal law and determine whether the OCCA’s rejection of

petitioner’s state-induced ineffective assistance claim involved an “unreasonable

application” of federal law.    Id.

         As noted above, petitioner is also asserting a standard (or non-state-

induced) ineffective assistance claim under         Strickland . Although petitioner

asserted his Strickland claim in the post-conviction proceedings before the


                                              -8-
OCCA, the OCCA did not address the merits of the claim because it determined

that petitioner had waived the claim by failing to raise it in his direct appeal.         See

F.R., Doc. 11, Ex. I (order of OCCA affirming denial of post-conviction relief) at

1-2. As a result, the OCCA did not adjudicate petitioner’s            Strickland claim on the

merits, and “the AEDPA standards do not apply.”               Cook v. McCune , 323 F.3d

825, 830 (10th Cir. 2003). Instead, we review petitioner’s            Strickland claim de

novo. See United States v. Whalen , 976 F.2d 1346, 1347 (10th Cir. 1992) (noting

that “the performance and prejudice prongs under             Strickland involve mixed

questions of law and fact which we review             de novo ”).

               2. Cronic/Bell .

       We conclude that the OCCA’s adjudication of petitioner’s state-induced

ineffective assistance claim did not result in a decision that involved an

unreasonable application of the principles established by the Supreme Court in

Cronic and Bell .

       In Cronic , the Supreme Court “identified three situations implicating the

right to counsel that involved circumstances ‘so likely to prejudice the accused

that the cost of litigating their effect in a particular case is unjustified.’”      Bell ,

535 U.S. at 695 (quoting      Cronic , 466 U.S. at 658-59).

       First and “[m]ost obvious” was the “complete denial of counsel.”
       Id. , at 659. . . . A trial would be presumptively unfair, we said,
       where the accused is denied the presence of counsel at “a critical
       stage,” id. , at 659, 662, . . . a phrase we used in Hamilton v.

                                                -9-
       Alabama , 368 U.S. 52, 54, . . . (1961), and White v. Maryland ,
       373 U.S. 59, 60 . . . (1963) ( per curiam ), to denote a step of a
       criminal proceeding, such as arraignment, that held significant
       consequences for the accused. Second, we posited that a similar
       presumption was warranted if “counsel entirely fails to subject the
       prosecution’s case to meaningful adversarial testing.”      Cronic , supra ,
       at 659. . . . Finally, we said that in cases like Powell v. Alabama ,
       287 U.S. 45, 53 . . . (1932), where counsel is called upon to render
       assistance under circumstances where competent counsel very likely
       could not, the defendant need not show that the proceedings were
       affected.

Id. at 695-96 (citing Cronic , 466 U.S. at 659-62) (footnote omitted).

       The first situation is not implicated here because petitioner was represented

by counsel at all times during the trial proceedings. Likewise, the second

situation is not implicated because, as noted above, petitioner’s trial counsel

actively participated in all phases of the trial proceedings.     Id. at 696-97 (noting

that “[w]hen we spoke in     Cronic of the possibility of presuming prejudice based

on an attorney’s failure to test the prosecution’s case, we indicated that an

attorney’s failure must be complete. We said ‘if counsel        entirely fails to subject

the prosecution’s case to meaningful adversarial testing’”) (quoting        Cronic , 466

U.S. at 659); see also Cooks v. Ward , 165 F.3d 1283, 1296 (10th Cir. 1998)

(holding that trial counsel’s deficient performance during sentencing stage of trial

did not “amount to kind of actual or constructive denial of counsel necessary to

trigger a presumption of prejudice” where counsel conducted limited cross-

examination, made evidentiary objections, and gave a closing argument);          Hooper


                                             -10-
v. Mullin , 314 F.3d 1162, 1175 (10th Cir. 2002) (holding that the “record [did]

not support the conclusion that defense counsel entirely failed to subject the

prosecution’s case to meaningful adversarial testing . . . [where] Defense counsel

cross-examined the State’s guilt-stage witnesses, made objections to the State’s

evidence, presented some evidence in Petitioner’s defense, and made opening and

closing arguments”), cert. denied , 124 S. Ct. 97 (2003).

       The third situation is also not implicated here. In     Cronic , the Supreme

Court cited to its decision in   Powell v. Alabama , 287 U.S. 45 (1932) as an

example of a case involving a situation where trial counsel is called upon to

render assistance under circumstances where competent counsel very likely could

not. Cronic , 466 U.S. at 659-60.     Powell is inapposite for purposes of this case,

however, because Powell involved an extreme situation where the trial court

waited until the very day of trial to appoint counsel for the defendants.     Id. at

660-61. By contrast, petitioner’s trial counsel was appointed almost two months

before his trial commenced,      see S.R. at 12, and the shortening of counsel’s trial-

preparation time by one week is distinguishable from the extreme situation that

existed in Powell .

              3. Strickland .

       To prevail on his Strickland claim, petitioner must establish that: (1) his

trial counsel’s performance was deficient; and (2) his trial counsel’s deficient


                                            -11-
performance prejudiced him.      See Strickland , 466 U.S. at 687. “This court may

address the performance and prejudice components in any order, but need not

address both if [petitioner] fails to make a sufficient showing of one.”      Cooks ,

165 F.3d at 1292-93. Here, we need only address the prejudice prong, which

requires that petitioner “must show that there is 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.

       In his opening and reply briefs, petitioner refers in conclusory fashion to a

number of failures of his trial counsel that allegedly prejudiced him at trial, and

the failures can be summarized as a failure to develop a defense theory and a

failure to discover and locate additional witnesses and evidence. Petitioner’s

conclusory allegations are insufficient to meet the prejudice prong of       Strickland .

See United States v. Mealy , 851 F.2d 890, 908 (7th Cir. 1988);       see also Hall v.

Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se plaintiffs

must allege sufficient facts on which a recognized legal claim can be based, and

that conclusory allegations will not suffice).

       In addition, although petitioner has articulated two specific failures of his

trial counsel that he claims prejudiced him, neither failure is sufficient, either

alone or together, to establish prejudice under    Strickland . First, petitioner claims

that his trial counsel should have cross-examined the prosecution’s witnesses with


                                            -12-
certain impeachment evidence and inconsistent statements that were contained in

their testimony at the preliminary hearing.      See Aplt. Opening Br. at 25-26. Even

assuming that petitioner has properly characterized the alleged impeachment

evidence and inconsistent statements, petitioner has failed to establish a

reasonable probability that this evidence would have resulted in a different

outcome at trial.

       Second, petitioner has submitted affidavits from two witnesses, Kathy

Peacock and Greg Morgan, who were at his residence around the time of the

robbery on February 5, 2000.      See Aplt. Opening Br., Exs. A and B. Petitioner

claims that he was prejudiced because his trial counsel failed to secure these

witnesses’ testimony for trial.   5
                                      See Aplt. Reply Br. at 10-13. The affidavits fail

to establish a reasonable probability that these witnesses’ testimony would have

resulted in a different outcome at trial because: (1) the witnesses admit that they

were not at petitioner’s residence at the time when the robbery allegedly occurred;

and (2) the witnesses do not provide any testimony or evidence that affirmatively

establishes that petitioner did not commit the robbery.



5
       Petitioner also claims that his trial counsel should have secured the
testimony of a third witness, Melody Alexander. However, the record indicates
that Ms. Alexander’s whereabouts were unknown at the time of petitioner’s trial.
See F.R., Doc. 11, Ex. K (affidavit of petitioner’s trial counsel) at ¶ 5. In
addition, petitioner has made no showing concerning what Ms. Alexander’s
testimony would have been.

                                              -13-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          Monroe G. McKay
                                          Circuit Judge




                               -14-
