                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 5, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 RANDY DALE PARSON,

             Petitioner-Appellant,                      No. 08-6146
 v.                                                  (W.D. Oklahoma)
 JIM KEITH, WARDEN,                            (D.C. No. 5:07-CV-00994-M)

             Respondent-Appellee.


                                     ORDER


Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.



      Randy Dale Parson, proceeding pro se, seeks a certificate of appealability

(“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition

for a writ of habeas corpus. He argues that the state failed to produce exculpatory

evidence as required by Brady v. Maryland and violated his due process rights.

We deny his application for a COA and dismiss this matter.

I.    BACKGROUND

      On September 29, 2003, Ashley Bethel accepted a ride from a Conoco store

in Ponca City, Oklahoma, from Mr. Parson. According to Ms. Bethel, Mr. Parson

drove her to a back road in Tonkawa, Oklahoma, pulled a scalpel out of his

pocket, and ordered her to undress. Mr. Parson forced her face down in the seat
of his vehicle, tied her feet together and then tied her feet to her hands. After

driving around for some time, Mr. Parson removed Ms. Bethel from the car and

placed her on the ground. When Ms. Bethel started to scream, Mr. Parson

punched her several times in the face, breaking her jaw.

      Later, Mr. Parson put Ms. Bethel into his car and drove to an abandoned

trailer house. There, he then raped and sodomized her repeatedly. When he was

finished, he placed Ms. Bethel into the trunk of his car, drove to a bridge, and

tossed her over the bridge. He then sat on top of Ms. Bethel with his knees on her

shoulders and began pushing her head under water. He choked her and slammed

her head on the ground.

      Afterwards, Mr. Parson left, saying that he was going to get a motel room.

Ms. Bethel yelled for help, and a truck driver stopped and called for assistance.

Mr. Bethel was taken to a nearby hospital and treated for physical injuries and

hypothermia.

      A state jury in Kay County, Oklahoma, convicted Mr. Parson of first-

degree rape (Counts I, II, and III), forcible sodomy (Count IV), assault and

battery with intent to kill (Count V), second-degree rape (Counts VI and VII),

kidnaping (Count X), and aggravated assault and battery (Counts XI and XII).

His sentences total 165 years of imprisonment.

      The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his

convictions and denied Mr. Parson’s subsequent petition for rehearing. Mr.

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Parson filed an application for post-conviction relief in the state district court,

which was denied. The OCCA affirmed that decision.

      Mr. Parson then filed a petition for writ of habeas corpus under 28 U.S.C. §

2254, arguing that (1) his due process rights were violated because the state failed

to produce exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963); (2) his due process rights were violated because he did not receive the

benefit of the OCCA’s ruling in Anderson v. State, 130 P.3d 273, 277-283 (Okla.

Crim. App. 2006) (regarding Oklahoma’s requirement that a jury be notified that

a defendant is required to serve 85% of his sentence before being eligible for

parole); (3) his double jeopardy rights were violated because his convictions

amounted to multiple convictions for the same offense; (4) his due process rights

were violated because Ms. Bethel’s in-court identification of him was unduly

suggestive; (5) the evidence was insufficient to support his convictions; (6) his

trial and appellate counsel were ineffective; (7) his sentence was excessive, in

violation of his Eighth and Fourteenth Amendment rights; and (8) cumulative

error denied him a fair trial.

      In a thorough report and recommendation, the magistrate judge rejected all

of Mr. Parson’s claims. Rec., vol. II, doc. 14 (Mag. Rep. and Rec., filed April 23,

2008). The district court adopted the report and recommendation and denied Mr.

Parson’s habeas petition.

      Mr. Parson now seeks a COA to appeal the district court’s dismissal of his

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petition, arguing that his due process rights were violated because (1) the state

failed to produce exculpatory evidence in violation of Brady; and (2) Ms. Bethel’s

in-court identification of him was unduly suggestive.

II.   DISCUSSION

      “[U]ntil a COA has been issued[,] federal courts of appeals lack

jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v.

Cockrell, 537 U.S. 322, 326 (2003). A COA may be granted “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Mr. Parson may make this showing by demonstrating

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong. Miller-El, at 336. Or, if the ruling was

procedural, that reasonable jurists would find it debatable both that the petition

states a valid claim of the denial of a constitutional right and that the district

court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 478

(2000).

      A. Brady issue

      Mr. Parson contends that the state failed to produce four investigative

reports from the Oklahoma State Bureau of Investigation (“OSBI”) prior to trial,

in violation of his due process rights under Brady. 373 U.S. at 87 (“[S]uppression

by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment,

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irrespective of the good faith or bad faith of the prosecution.”). In ruling on Mr.

Parson’s application for post-conviction relief, the OCCA noticed that he had not

raised this Brady claim in his direct appeal. The OCCA, therefore, concluded that

the claim was procedurally barred. See Okla. Stat. tit. 22, § 1086; Ellis v.

Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (“[Okla. Stat. tit. 22, § 1086]

prevents us from reviewing Ellis’s defaulted claim unless he can demonstrate both

cause for the default and actual prejudice as a result of the alleged violation of

federal law.”) (internal quotation marks omitted).

      In the post-conviction proceedings, Mr. Parson argued that the procedural

bar did not apply to his case. To overcome the procedural bar, Mr. Parson had to

demonstrate both cause for the default and actual prejudice as a result of the

alleged violation of federal law. Ellis, 302 F.3d at 1186. As cause, Mr. Parson

alleged that appellate counsel was ineffective for failing to raise the Brady claim

on appeal. The OCCA, however, rejected this argument on the basis that Mr.

Parson failed to demonstrate that the outcome of his proceedings would have or

should have been different based on the state’s failure to disclose the reports prior

to trial. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (“[To show

constitutionally defective assistance of counsel,] defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”). Relying on the

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Supreme Court’s instruction in Strickland, the OCCA concluded that counsel’s

failure to raise the claim on direct appeal did not amount to constitutionally

ineffective assistance of counsel.

      On habeas review, we must defer to the OCCA’s determination that

appellate counsel was not ineffective for raising this claim. 28 U.S.C. §

2254(d)(1). Thus, Mr. Parson must show that the OCCA’s determination of this

issue was contrary to or an unreasonable application of Strickland. As the

magistrate judge observed, Mr. Parson fails to demonstrate the “materiality”

component of his Brady claim. See Rec., vol. II, doc. 14, at 10 (Mag. Rep. and

Rec., filed April 23, 2008) (citing Trammell v. McKune, 485 F.3d 546, 551 (10th

Cir. 2007) (“The standard for determining Brady materiality is well-established.

The touchstone of materiality is a reasonable probability of a different result.”)

(internal quotation marks omitted)). In other words, Mr. Parson did not satisfy

his burden to demonstrate a reasonable probability of a different result had the

reports been produced pretrial. We agree and thus conclude that the district court

properly denied Mr. Parson’s Brady claim.

      B. In-court identification

      Mr. Parson alleges that Ms. Bethel’s in-court identification of him was

unduly suggestive and thus violated his due process rights. Ms. Bethel identified

Mr. Parson for the first time at trial, nearly three years after the incident.

Moreover, Mr. Parson asserts that, at the time of the identification, Mr. Bethel

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had only himself and his defense counsel to choose from, thereby making the

identification “akin to a one-person line-up.” Rec., vol. II, doc. 14, at 25.

      As the Supreme Court stated in Manson v. Brathwaite, “the admission of

testimony concerning a suggestive and unnecessary identification procedure does

not violate due process so long as the identification possesses sufficient aspects of

reliability.” 432 U.S. 98, 106 (1977). A reliability determination requires an

inquiry into the totality-of-the-circumstances. Neil v. Biggers, 409 U.S. 188, 196

(1972). On review, the magistrate judge observed that even if, as Mr. Parson

alleges, the OCCA’s failure to apply Manson and Biggers was erroneous, his

claim fails because any such error was harmless. Rec., vol. II, doc. 14, at 31-32

(citing Kennaugh v. Miller, 289 F.3d 36, 48 (2d Cir. 2002) (declining to

determine whether a state court unreasonably applied clearly established federal

law because any error by the state court “in failing to test directly the reliability

of [the witness’s identification] testimony was harmless”).

      As the Supreme Court stated in Brecht v. Abrahamson, habeas relief is

improper unless the error had a “substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. 619, 623 (1993) (internal quotation

marks omitted). Based on Brecht, the magistrate judge agreed with the OCCA,

noting, “the weaknesses surrounding [Ms. Bethel’s] testimony were presented to

the jury through defense counsel’s cross-examination of [Ms. Bethel] and other

witnesses. . . . [Moreover,] the evidence was sufficient to convict Petitioner of the

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offenses.” Rec., vol. II, doc. 14, at 31-32 (citing Kennaugh, 289 F.3d at 48

(finding any error in admission of an in-court identification testimony harmless

where evidence of guilt was powerful and credibility and reliability of witness’s

in court identification were challenged on cross examination of the witness)). We

agree.

III.     CONCLUSION

         We have reviewed Mr. Parson’s request for a COA, the magistrate judge’s

report and recommendation, the district court’s order, and the record on appeal.

For substantially the same reasons set forth by the magistrate judge, we conclude

that Mr. Parson is not entitled to a COA. The magistrate judge’s report and

recommendation reflects a careful analysis of the record and is supported by

applicable law. Because jurists of reason would not find these conclusions

debatable, we DENY Mr. Parson’s request for a COA and DISMISS this matter.



                                 Entered for the Court,



                                 Robert H. Henry
                                 Chief Judge




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