                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           AUG 3 2001
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                                 Clerk


    CECIL EDWARD WOOD,

                Petitioner-Appellant,

    v.                                                   No. 99-6283
                                                     (D.C. No. 97-CV-754)
    STEVE HARGETT,                                       (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and KELLY , 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      This order and judgment is not binding precedent, except under the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 Cecil Edward Wood appeals from the district court’s denial of his

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

district court did not hold an evidentiary hearing, so our review of its decision is

de novo. See Miller v. Champion , 161 F.3d 1249, 1254 (10th Cir.1998). We

conclude that petitioner has raised a substantial claim that his trial counsel

provided constitutionally ineffective assistance by failing to challenge the number

of prior convictions the jury could consider in imposing his sentence. We

therefore remand the case for an evidentiary hearing on this issue.

      Petitioner was convicted in Oklahoma state court in 1992 of second degree

burglary after former conviction of two or more felonies. He was sentenced to

fifty years in prison. His conviction and sentence were affirmed on appeal, and his

request for post-conviction relief in state court was denied. In May 1997, he filed

this habeas petition challenging his conviction and sentence on a variety of

grounds. Adopting the magistrate judge’s report and recommendation, the district

court determined that petitioner had not stated any valid bases for relief and denied

the petition.

      Petitioner filed a request for a certificate of appealability pursuant to

28 U.S.C. § 2253(c) on many of the issues he raised in the district court. We

granted his request on the following two specific issues: (1) whether trial counsel

provided constitutionally ineffective assistance by failing to challenge, as related


                                          -2-
under Okla. Stat. tit. 21, § 51B, the three convictions listed under case number

CR-281-391F from McDonald County, Missouri, on the second page of the

information filed against petitioner; and (2) whether appellate counsel provided

constitutionally ineffective assistance by failing to raise on direct appeal the issue

of alleged trial counsel ineffectiveness described above.   1
                                                                Respondent contends

that petitioner has waived the latter issue by failing to raise it in the district court.

He further contends that the district court correctly rejected the first issue on the

merits. Because we resolve the appeal on the basis of trial counsel’s performance,

we need not address whether petitioner has waived the latter issue regarding

appellate counsel’s performance.

       To establish constitutionally ineffective assistance of counsel, petitioner

must demonstrate that his counsel’s performance fell below an objective standard

of reasonableness and that counsel’s substandard performance prejudiced his

defense. Strickland v. Washington , 466 U.S. 668, 687, 688 (1984). To meet the



1
       Petitioner also requested a certificate of appealability on the following
issues: (1) other types of ineffective assistance by trial and appellate counsel;
(2) insufficient evidence to support his conviction; (3) improper introduction of
other crimes evidence; (4) impermissibly suggestive pretrial photo lineup; and
(5) prosecutorial misconduct. The district court held that the second and fifth
issues were procedurally barred, and that the remaining issues lacked merit. We
have considered petitioner’s arguments and reviewed the record, and conclude
that for these issues, petitioner has not made a substantial showing of the denial
of a constitutional right.  See § 2253(c). His request for a certificate of
appealablity for these issues is denied.

                                            -3-
first prong, petitioner must demonstrate that the omissions of his counsel fell

“outside the wide range of professionally competent assistance.”         Id. at 690.

Strategic or tactical decisions on the part of counsel are presumed correct,      id. at

689, unless they were “completely unreasonable, not merely wrong, so that [they]

bear no relationship to a possible defense strategy,”     Fox v. Ward , 200 F.3d 1286,

1296 (10th Cir. 2000) (quotation and citations omitted). To prevail on the second,

prejudice prong, petitioner “must show that there is a reasonable probability that,

but for his counsel’s unprofessional errors, the result of the proceeding would have

been different.”   Strickland , 466 U.S. at 694.   2



       As noted above, petitioner was charged with second degree burglary after

former conviction of two or more felonies. The second page of the information



2
       Petitioner first raised his ineffective trial counsel claim in his application
for post-conviction relief. The state court rejected it on the merits and on the
basis of procedural bar, since petitioner did not raise it on direct appeal. On
appeal from the denial of post-conviction relief, the Oklahoma Court of Criminal
Appeals rejected this claim only on procedural bar grounds. Respondent has not
raised a procedural bar defense to this claim in federal court. We therefore
consider it waived. See Hatch v. Oklahoma , 58 F.3d 1447, 1453 (10th Cir. 1995).

      We also note that respondent does not contend that we owe the state court
decision rejecting this ineffective counsel claim any deference under 28 U.S.C.
§ 2254(d). Cf. Liegakos v. Cooke , 106 F.3d 1381, 1385 (7th Cir. 1997) (declining
to apply § 2254(d) deference to state trial court merits decision where state
appellate court resolved issues on procedural grounds, rather than on merits).
Even assuming we might owe the state court’s merits decision deference in such
circumstances, we would find the issue waived by respondent’s failure to raise it.
Emerson v. Gramley , 91 F.3d 898, 900 (7th Cir. 1996).

                                             -4-
that charged him with the prior convictions listed five separate convictions. Three

of the convictions, which were from a McDonald County, Missouri court, have the

same date and case number (CR-281-393F). At the second or sentencing stage of

petitioner’s trial, the prosecutor read to the jury the second page of the information

and presented certified copies of the judgments for the five prior convictions. The

court instructed the jury that second degree burglary after former conviction of

two or more felonies is punishable by a term of imprisonment not less than twenty

years. The prosecutor asked for a sentence of forty years. The jury gave petitioner

fifty.

         As the jury was instructed, Okla. Stat. tit. 21, § 51(B) provides that

punishment for a felony conviction following two or more prior felony convictions

within the previous ten years shall be a prison term of at least twenty years.

Addressing what prior convictions may be used in this sentence enhancement

scheme, § 51(B) further states that “[f]elony offenses relied upon shall not have

arisen out of the same transaction or occurrence or series of events closely related

in time and location.”    Id. 51(B). Related convictions are thus counted as only

one prior conviction.    See, e.g. , Hammer v. State , 671 P.2d 677, 678 (Okla. Crim.

App. 1983) (“[I]f multiple convictions result [from a single criminal episode],

under Section 51(B), only one may be used to enhance punishment.”).




                                            -5-
      Petitioner contends that the three Missouri convictions with the same date

and case number are related and that counting them as one, the information, and

correspondingly, the evidence presented to the jury should have identified only

three prior convictions instead of five. He further maintains that his trial counsel

was ineffective for failing to challenge the use of the related convictions for

enhancement purposes.

      In the magistrate’s judge’s report and recommendation, which was adopted

by the district court, the magistrate judge rejected petitioner’s related-convictions

argument, stating:

      [T]he defendant bears the burden of proving that the prior convictions
      arose out of the same transaction. The mere fact that the charges are
      similar, that pleas to the crimes were entered on the same day or that
      the case numbers are consecutive is not sufficient proof that the
      convictions were related. Here, Petitioner offers nothing but bald
      allegations and the fact that the convictions share the same case
      number to support his claim that the convictions arose out of the same
      transaction. The Judgment of Conviction in CR-281-393F reveals that
      at least one charge involved a different victim. Petitioner has failed
      to show that his convictions in CR-281-393F arose out of the same
      transaction . . . .

R., Doc. 31 at 12 (citations and quotation omitted). Because she concluded

petitioner had not demonstrated that any of the prior convictions were

inadmissible, the magistrate judge determined that his counsel was not ineffective

for failing to pursue this possible defense.




                                          -6-
       Petitioner, however, had more than bald allegations and identical case

numbers and dates. The three convictions he contends are related were for

stealing, burglary and assault. The judgment for these convictions shows that all

three crimes occurred on the same day, that the stealing count involved Jerry

Hart’s property, and that the burglary count involved entering Jerry Hart’s

residence with the intent to steal. Additionally, in a verified document, he alleged

that the third count was for an assault on a law enforcement officer during his

escape from the burglary.

       The Oklahoma Court of Criminal Appeals addressed a somewhat analogous

situation in Miller v. State , 675 P.2d 453 (Okla. Crim. App. 1984). The defendant

testified that three of his convictions resulted from one event, and the court found

that the “copies of the judgments and sentences introduced by the State tended to

substantiate his testimony.”   Id. at 455. The only evidence of this substantiation

the court cited was that

       [t]he convictions were for Assault and Battery With a Dangerous
       Weapon, Assault and Battery With a Deadly Weapon With Intent to
       Kill, and Larceny of an Automobile. The appellant testified that the
       charges arose from an attempted repossession of a car he had bought.
       A fight ensued, which resulted in the appellant wounding two men
       with a knife.


Id. n.1. The court found this evidence sufficient to show that the three convictions

were related under § 51(B) and should have counted as only one.     Id. at 455.


                                           -7-
Similarly, in Hammer , the court found weapons and kidnapping charges to be

related:

             At trial the appellant admitted having convictions for Pointing a
      Weapon at Another, AFCF, and Kidnapping, AFCF. His testimony
      also established that those convictions were the result of a single
      incident.

            The convictions were the result of an incident that occurred at
      Baptist Hospital in Oklahoma City in January, 1978. The
      informations were consecutively numbered, tried together, and the
      sentences on each conviction were to run concurrently.

      ....

             We hold that the convictions in question because of their
      relation to each other in time and location arose out of the same
      criminal transaction. The State therefore, improperly relied upon the
      appellant’s two prior felony convictions for enhancement purposes
      under Section 51(B). This error requires modification of his
      sentence.


Hammer , 671 P.2d at 678.   See also Cardenas v. State , 695 P.2d 876, 878 (Okla.

Crim. App. 1985) (finding it “inescapable” that offenses that “occurred on the

same day, and at the same location” should be counted as only one prior conviction

under § 51(B)).

      We conclude that, under the guidance of these cases, petitioner has made an

adequate showing that his three convictions were related. The burglary and

stealing convictions appear to be intricately related, and the assault conviction

appears to be part of an almost continuous incident. Moreover, most of the


                                          -8-
relevant facts are apparent from the face of the judgment the state produced to

prove the convictions. We cannot think of any tactical reason why petitioner’s

trial counsel would not have investigated this matter and pursued this possible

sentencing defense.

      Respondent argues, without citing any authority, that even assuming that

these three convictions should be counted as only one, petitioner cannot show

prejudice because he still would have three valid prior convictions to support his

enhanced sentence.   3
                         Under Oklahoma law, however, sentencing decisions are left

to the jury’s discretion, and the number of prior convictions presented to the jury

may well affect the jury’s discretion. We think that particularly true where, as

here, the prosecutor emphasized and, in fact, solely relied on the number of prior




3
       We note that in her report, the magistrate judge stated that even had
petitioner shown the three Missouri convictions should be counted as one, he
would not have prevailed on appeal because he still had more than the two prior
convictions necessary for an enhanced sentence under § 51(B). The magistrate
judge cited Pekah v. State , 660 P.2d 652, 654 (Okla. Crim. App. 1983), in which
the court held that, even assuming two prior convictions were improperly
admitted for enhancement purposes, the defendant’s sentence under § 51(B) was
valid because there were still three other prior convictions. The magistrate judge
discussed this issue in the context of a claim of ineffective appellate counsel for
failing to raise a related-convictions argument on appeal. Were we addressing
appellate counsel’s performance, we might agree with her analysis, since the
argument would not be a “dead-bang winner.”       See United States v. Cook , 45 F.3d
388, 395 (10th Cir. 1995). However, we do not find     Pekah relevant to trial
counsel’s performance because, as discussed above, sentencing is a jury issue.

                                           -9-
convictions in seeking a harsh sentence for petitioner.      4
                                                                 The Oklahoma Court of

Criminal Appeals reached a similar conclusion in          Miller . In that case, the court

found that two of the four prior convictions the prosecution relied on were


4
       After reminding the jury of petitioner’s five prior convictions and sentences
in his closing, the prosecutor argued as follows:

              This defendant is before the Court not for the first time. He’s
        not before the Court on his second chance. Not the third time, or the
        fourth time. He’s here after having been convicted at least six times.

              How do you deal with that kind of repeat offender? What do
        you do? Obviously any effort to rehabilitate that offender has been
        offered to him in the past in the criminal justice system, or in the
        probation that’s in those records.

               And it was obviously a waste of time.

               What do you do with a defendant like this? You take him off
        the street, because that’s the only thing we can do with him. Because
        the only thing we can do with him is remove him from a free society
        so that he won’t have more victims, so he won’t steal from more
        people.

        ....

              And the longer he is gone the better off we all are. And my
        suggestion to you, Ladies and Gentlemen, as the law says the
        minimum is twenty years. That’s with two convictions.

              I would say that twice that amount, knowing what we know
        today about punishments, twice that amount is a very reasonable
        request. Because at least we know if we give him forty years he
        won’t be around here for a little while.

Trial Tr., Vol. II at 54, 58. As noted earlier, the jury gave petitioner a fifty-year
sentence.

                                            -10-
improper for enhancement purposes under § 51(B), and it held the error was not

harmless. “The prosecutor based his argument for a long prison term solely on the

number of prior convictions. . . . We find the resulting prejudice to the appellant

reflected in the fifty year sentence imposed, and modify it to twenty years’

imprisonment.”   Miller , 675 P.2d at 455-56.

      “A deprivation of an opportunity to have a sentencing court exercise its

discretion in a defendant’s favor can constitute ineffective assistance of counsel.”

United States v. Castro , 26 F.3d 557, 560 (5th Cir. 1994) (quoted in    United States

v. Harfst , 168 F.3d 398, 404 (10th Cir. 1999)). Petitioner has presented evidence

that his counsel was ineffective for failing to challenge prior convictions used to

enhance his sentence. We thus conclude that, assuming the facts are as petitioner

contends and the Missouri convictions should have been counted as only one,

petitioner has demonstrated a reasonable probability that but for counsel’s error,

the result of the sentencing proceeding would have been different. We cannot say

conclusively on the record before us that counsel was constitutionally ineffective;

an evidentiary hearing is necessary for that determination.

      We therefore REVERSE that part of the district court’s order dismissing

petitioner’s claim of ineffective assistance of trial counsel as it relates to the use

of prior convictions to enhance his sentence, and REMAND the case to the district

court for an evidentiary hearing and further proceedings consistent with this order


                                           -11-
and judgment. Petitioner’s request for a certificate of appealability is DENIED

with respect to all issues on which his request was not previously granted.

Petitioner’s request to proceed in forma pauperis on appeal is GRANTED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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