                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 20 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JOHNNY DAVID WASHINGTON,

                  Petitioner - Appellant,
                                                          No. 02-5024
    v.                                              (D.C. No. 98-CV-696-K)
                                                       (N.D. Oklahoma)
    RON CHAMPION, Warden,

                  Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , 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      This order and judgment is not binding precedent, except under the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 seeks a certificate of appealability (COA) in order to appeal the

district court’s order denying relief in his motion filed pursuant to 28 U.S.C.

§ 2254. We deny a COA and dismiss the appeal.

       Because petitioner filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), our review of his claims

is governed by its provisions.   McGregor v. Gibson , 248 F.3d 946, 951 (10th Cir.

2001). Under AEDPA, petitioner must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this showing by

establishing that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).

       If a claim was decided on its merits by a state court, petitioner is entitled to

relief only if 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),

or ‘was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.      Id. § 2254(d)(2).’”   McCracken

v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001),     cert. denied , 123 S. Ct. 165

(2002). The “contrary to” clause of § 2254(d)(1) requires a finding the state court


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arrived at a conclusion opposite to that of the Supreme Court or decided the case

differently than the Court on a set of materially indistinguishable facts.     Williams

v. Taylor , 529 U.S. 362, 412-13 (2000). The “unreasonable application clause” of

§ 2254(d)(1) requires a conclusion not only that the state court decision applied

clearly established federal law erroneously or incorrectly, but also that the

application of federal law was unreasonable.       Id. at 411. Under § 2254(d)(2), “a

decision adjudicated on the merits . . . based on a factual determination will not

be overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.”        Miller-El v. Cockrell , 123

S. Ct. 1029, 1033 (2003). We read petitioner’s brief as arguing the provisions of

§ 2254(d)(1) only. Finally, we will not consider an issue on habeas review that

has been defaulted in state court on an independent and adequate state procedural

ground unless petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.   McCracken , 268 F.3d at 976.

       Petitioner raised fourteen issues in his federal petition, all of which were

raised either on direct appeal to the Oklahoma Court of Criminal Appeals

(OCCA) or in an application for post-conviction relief. The issues presented

were: (1) trial court error in permitting petitioner to appear before the jury in

prison clothing; (2) ineffective assistance of trial counsel; (3) ineffective

assistance of appellate counsel; (4) trial court error in allowing testimony of


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petitioner’s psychologist regarding past crimes; (5) error in admitting a

Department of Corrections “Pen Pack”; (6) improper communication by the trial

court with the jury without notice to petitioner or his attorney; (7) error in

admitting testimony of Angie R. Jones in violation of petitioner’s Fourteenth

Amendment rights; (8) trial court error in berating petitioner’s attorney before the

jury, indicating lack of judicial impartiality; (9) denial of due process because the

preliminary hearing failed to establish elements of one kidnaping count; (10) error

in sustaining state’s motion in limine on petitioner’s insanity defense; (11) error

in failing to dismiss attempted rape count based on complaining witness’ denial

such attempt occurred; (12) lack of evidence to support the attempted rape

conviction; (13) failure to properly instruct the jury as to consummation of crime

of rape; and (14) defective information which failed to allege perpetrating acts

and lacked necessary consummation clause.

       Although on direct appeal the OCCA adjudicated several of petitioner’s

claims in summary fashion, “we owe deference to the state court’s     result , even if

its reasoning is not expressly stated.”   Aycox v. Lytle , 196 F.3d 1174, 1177

(10th Cir. 1999) (emphasis in original). In reviewing the state court's decision,

the district court correctly concluded, based on the record, that under either

harmless error analysis standard, i.e.,   Chapman v. California , 386 U.S. 18 (1967),

or Brecht v. Abrahamson , 507 U.S. 619 (1993), petitioner was not entitled to


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habeas relief based on his brief appearance before the jury in jail clothing. The

district court also correctly determined there was sufficient evidence under the

standard established in   Jackson v. Virginia , 443 U.S. 307 (1979), to support the

attempted rape conviction based on the proof requirements. Our review of the

evidence produced at trial reflects that a rational jury clearly could have found

petitioner guilty of this offense beyond a reasonable doubt.

       As to the other issues presented on direct appeal which challenged state

evidentiary rulings at trial, i.e., admission of testimony of petitioner’s

psychologist regarding certain statements made by petitioner, admission during

the sentencing phase of the “Pen Pack,” and inadequate notice of Jones’

testimony, these alleged errors were not so grossly prejudicial as to have “fatally

infected the trial and denied the fundamental fairness that is the essence of due

process.” Fox v. Ward , 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation omitted).

       Petitioner’s second and third claims raised issues of ineffective assistance

of trial and appellate counsel. The OCCA appropriately considered these claims

in petitioner’s post-conviction application. The court applied the correct legal

standard of Strickland v. Washington , 466 U.S. 668 (1984), acknowledging that,

specifically, petitioner failed to establish the prejudice prong of   Strickland .

Based on our review of the trial transcript and the lack of any other evidence, we




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agree that the OCCA's adjudication of these claims was neither contrary to nor an

unreasonable application of federal law.

      The OCCA determined the balance of petitioner’s claims were procedurally

barred. If the OCCA declined to reach the merits of those claims on independent

and adequate state grounds, they may not be considered on federal habeas review

unless petitioner is able to demonstrate cause for the default and actual prejudice

resulting from the alleged violation of federal law, or that failure to consider the

claims would result in a fundamental miscarriage of justice.    See Coleman v.

Thompson , 501 U.S. 722, 748 (1991). Petitioner makes no such showing.

Further, petitioner does not claim, nor has he demonstrated, that he is actually

innocent of the crimes for which he was convicted.

      We have reviewed the well-reasoned and thorough disposition of

petitioner’s claims as outlined in the district court’s order of January 31, 2002.

We DENY a COA for substantially the same reasons set forth in that order and

DISMISS the appeal.


                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




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