                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 19, 2008
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ROBERT LOUIS ROSS, SR.,

              Petitioner-Appellant,

 v.                                                     No. 08-6166
                                                       (W. D. Okla.)
 DAVID PARKER,                                  (D.C. No. 5:08-CV-00033-C)

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Robert Louis Ross, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Ross has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   I. Background

      Mr. Ross was charged with delivering cocaine base to a confidential

informant. He had four prior felony convictions, including three for unlawful

delivery of a controlled substance. He was convicted by a jury, based in large

part on testimony from a confidential informant who purchased drugs from Mr.

Ross. The jury also saw a videotape of the drug purchase and heard the testimony

of a criminalist who stated that the substance Ms. Schultz purchased was .15

grams of cocaine base.

      At sentencing, Mr. Ross stipulated that he had three prior felony convictions

for unlawful delivery of a controlled substance. The jury found that Mr. Ross

committed the offense after three prior felony convictions and recommended a

sentence of eighty years’ imprisonment and a $20,000 fine. On November 25,

2003, Mr. Ross received a sentence of eighty years’ imprisonment with no fine.

      Mr. Ross appealed his conviction, arguing both that prosecutorial

misconduct during closing argument denied him a fair trial and that the trial

court’s failure to instruct the jury on entrapment resulted in reversible error. The

Oklahoma Court of Criminal Appeals (“OCCA”) upheld the conviction.

      Subsequently, Mr. Ross filed an application for post-conviction relief in the

District Court of Custer County. His application included five grounds for relief:

(1) the OCCA violated his rights under state and federal law by allowing a judge,

who was later forced to resign for misconduct, to hear his appeal while the judge

                                          -2-
was being investigated by the Oklahoma Attorney General; (2) the prosecutor

made prejudicial remarks during closing argument, which denied him a fair trial;

(3) the court failed to give an entrapment jury instruction; (4) his counsel provided

ineffective assistance because he did not pursue an entrapment defense or

challenge the racial composition of the jury; and (5) there was purposeful racial

discrimination during jury selection in violation of his rights under Batson v.

Kentucky, 476 U.S. 79 (1986).

      On May 11, 2007, the state court entered findings and denied Mr. Ross’s

application for post-conviction relief. The court held that Mr. Ross had already

raised grounds two, three, and four on direct appeal, and those claims were

“therefore denied.” 1 The OCCA affirmed on August 13, 2007. Mr. Ross raises all

five grounds for relief again in this appeal.

                                    II. Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

      1
        This statement appears inaccurate. On direct appeal, only grounds two and
three were actually raised by Mr. Ross. The fourth ground, whether Mr. Ross’s
counsel provided ineffective assistance in failing to pursue an entrapment
defense, was neither raised by Mr. Ross nor addressed by the OCCA on direct
appeal.

                                          -3-
could debate whether . . . 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) (internal quotation

marks and citations omitted). Where a state court has already adjudicated a claim

on the merits, an application for writ of habeas corpus shall not be granted with

respect to that claim unless the state’s decision “was contrary to, or involved an

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

Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

      Three of the five claims raised by Mr. Ross have already been adjudicated

by Oklahoma courts. On direct appeal, the OCCA adjudicated Mr. Ross’s claims

involving prosecutorial misconduct during closing argument and alleged judicial

error in failing to issue a jury instruction on entrapment, grounds two and three

presented on appeal. The Custer County District Court, in the post-conviction

relief proceedings, adjudicated the judge qualification claim, ground one on

appeal. Thus, habeas relief can only be granted on these three claims if the state’s

decision was contrary to, or involved an unreasonable application of, clearly

established Federal law. 28 U.S.C. § 2254(d)(1). Mr. Ross has the burden of

showing that the state court applied Supreme Court precedent to the facts in an



                                          -4-
“objectively unreasonable manner.” See Brown v. Payton, 544 U.S. 133, 141

(2005); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).

                        A. Appellate Court Judge’s Bias

      Mr. Ross argues that the OCCA violated the federal and Oklahoma

constitutions by allowing one of its judges, former OCCA Judge Steven E. Lile, to

consider his direct appeal while the Oklahoma Attorney General was investigating

Judge Lile. Shortly after a decision in Mr. Ross’s direct appeal was entered, Judge

Lile resigned from his judgeship. The OCCA rejected this argument in Mr. Ross’s

post-conviction appeal, finding that the claim of judicial bias was not supported by

the record.

      Judge Lile resigned his office three weeks after the decision in Mr. Ross’s

direct appeal was issued. All four judges on the panel agreed that Mr. Ross’s

conviction should be affirmed. Three agreed that his sentence should also be

affirmed, though one thought it should be modified. Thus, Mr. Ross’s conviction

would have been affirmed even if another judge had been substituted in Judge

Lile’s place. Mr. Ross has not indicated how the circumstances leading to Judge

Lile’s resignation prejudiced Mr. Ross in any way. He says only that Judge Lile

should not have heard the case “[b]ecause the case deals with drugs, which the

judge’s suspension had something to do with,” and that Judge Lile’s secretary and

her son may have had drug problems. These allegations raise only the faintest



                                        -5-
appearance of bias. Because it is Mr. Ross’s burden to overcome the presumption

of impartiality, Bracy v. Gramley, 520 U.S. 899, 909 (1997); Fero v. Kerby, 39

F.3d 1462, 1479 (10th Cir. 1994), his failure to offer any evidence of actual bias is

fatal to his claim that the state court applied established federal law unreasonably.

                            B. Prosecutorial Misconduct

      Mr. Ross argued on direct appeal that the prosecutor engaged in misconduct

that violated his rights to due process and a fair trial. In his direct appeal, Mr.

Ross pointed to the following statements, which the prosecutor made during

argument at the end of the first stage of Mr. Ross’s trial:

             I also ask that you ask—you consider the elements. Look at the
      location. The testimony from Ms. Schultz, it’s near businesses. It’s
      near schools. It’s near churches. It’s in the middle of the day. It’s
      not in a secluded neighborhood where all drug transactions take place,
      [but] it’s out there where the public goes in the middle of the day.
             It’s time to show Mr. Ross that the public is not going to
      tolerate that anymore. Drugs affect families. They affect jobs. And I
      think now it’s time to send a message, and I ask that you find Mr.
      Robert Ross, Sr., the defendant, guilty. Thank you.


Supp. Report 12. He also argued that the following statements made by the

prosecutor during closing arguments in the sentencing stage of Mr. Ross’s trial

were improper:

             28 years he’s received and he still has not learned his lesson.
      He still—he gets out. I believe that 1999—or 1997 case he was
      sentenced to 10 years imprisonment—1998, 10 years. He got out a
      short while later. This is only 2003 . . . . I submit to you that 28
      years total is not enough. It’s not enough to send the message that the

                                          -6-
      State or the people want to send. We want to get the drug dealers off
      the street. Must I remind you it happened in broad daylight at a quick
      shop near a church, near a school, near businesses. And I submit to
      you that we need to send a message to Robert Ross, Sr. and others
      who are committing this crime. And I submit to you I ask for 80
      years. Thank you.


Id. Mr. Ross argued on direct appeal that these statements were made to incite the

passions and prejudices of the jury, injected issues besides guilt and innocence,

and improperly raised the issue of parole. However, his counsel failed to object to

any of these arguments at trial. Therefore, the OCCA reviewed this claim only for

plain error. McBride v. United States, 409 F.2d 1046, 1048 (10th Cir. 1969).

Plain error “occurs when there is (1) error, (2) that is plain, (3) which affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Lopez-Flores, 444 F.3d 1218,

1222 (10th Cir. 2006) (internal citation omitted). The OCCA rejected Mr. Ross’s

prosecutorial misconduct claim without explanation.

      “Habeas relief is available for prosecutorial misconduct only when the

misconduct is so egregious that it renders the entire trial fundamentally unfair.”

Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998) (citing Donnelly v.

DeChristoforo, 416 U.S. 637, 642-48 (1974)). In making this determination, we

consider “the totality of the circumstances, evaluating the prosecutor’s conduct in

the context of the whole trial.” Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.

1998) (citing Donnelly, 416 U.S. at 643). First, we determine if the prosecutor


                                          -7-
acted improperly. See United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996).

If so, then we determine whether the misconduct warrants reversal. Id.

      Here, the prosecutor asked the jury to help solve a problem in society by

convicting Mr. Ross. This is improper. See United States v. Taylor, 514 F.3d

1092, 1104 (10th Cir. 2008) (“[A] prosecutor’s appeal to the jury to assist in

solving a pressing social problem by convicting [the] Defendant was improper.”).

Whether the misconduct requires reversal depends on whether “there is reason to

believe that it influenced the jury’s verdict.” Ivy, 83 F.3d at 1288 (internal

quotations omitted). In making that determination, we “consider the trial as a

whole, including ‘the curative acts of the district court, the extent of the

misconduct, and the role of the misconduct within the case.’” Id. (quoting United

States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988)). Because the

defendant did not lodge a timely objection at trial, there were no admonitions to

counsel or curative instructions.

      We conclude that the OCCA did not unreasonably apply Supreme Court

precedent when it determined that the prosecutor’s closing argument did not

warrant reversal under a plain error standard. “[A]n improper appeal to societal

alarm typically does not amount to a denial of due process.” Jones v. Gibson, 206

F.3d 946, 959 (10th Cir. 2000). Here, the overwhelming evidence presented at Mr.

Ross’s trial established his guilt. Under Donnelly and Cummings, misconduct

warrants reversal only if the action was so egregious that it rendered the entire

                                           -8-
trial unfair. See Donnelly, 416 U.S. at 642-48; Cummings, 161 F.3d at 618.

Considering the other inculpatory evidence presented to the jury, the lack of an

objection, and the deference AEDPA affords to state court decisions, no

reasonable jurist could conclude that the prosecutorial misconduct in this case

warrants grant of habeas relief.

      The OCCA, likewise, was not unreasonable in concluding that the

prosecutor’s misconduct during the sentencing phase of the proceedings did not

warrant reversal. Mr. Ross argues that his eighty-year sentence is “clearly

excessive” for the drug offense, and that it was the prosecutor’s improper

argument during this phase of the proceedings that “undoubtedly influenced the

jury to recommend such a severe sentence.” We disagree. Mr. Ross had

stipulated to evidence of his three prior convictions for illegal drug distribution.

With these facts before it, the jury imposed a sentence within the range of

sentencing allowed by Oklahoma law. These circumstances do not establish that

the jury would have reached a different decision had it not heard the prosecutor’s

appeal to societal alarm. The OCCA’s decision, therefore, was not contrary to or

an unreasonable application of established law.

                          C. Entrapment Jury Instruction

      Mr. Ross argues that the trial court committed reversible error when it

refused to give the proposed jury instructions on entrapment that Mr. Ross’s



                                          -9-
counsel had submitted. The OCCA rejected this claim with no explanation other

than a cite to one of its prior decisions, Cooper v. State, 810 P.2d 1303 (Okla.

Crim. App. 1991). In that case, the OCCA held “it is not entrapment for police to

simply furnish a defendant with an opportunity to commit a crime.” Id. at 1305.

      Generally, “a defendant is entitled to an instruction as to any recognized

defense for which there exists evidence sufficient for a reasonable jury to find in

his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988). An entrapment

defense requires a showing of “government inducement of the crime, and a lack of

predisposition on the part of the defendant to engage in the criminal conduct.” Id.

      Mr. Ross argues that he is entitled to the jury instruction based on Ms.

Schultz’s testimony at trial that she had told Mr. Ross she “needed” the cocaine

she was going to purchase from him and had contacted Mr. Ross five to ten times

to arrange a purchase. This testimony, however, is not sufficient for a reasonable

jury to find entrapment. Testimony that “a government agent solicited, requested,

or approached the defendant to engage in a criminal conduct, standing alone, is

insufficient to constitute inducement.” United States v. Nguyen, 413 F.3d 1170,

1179 (10th Cir. 2005), cert. denied, 546 U.S. 1125 (2006). Accordingly, the jury

would not have found entrapment even if the instruction had been given.

      Moreover, the Supreme Court has recognized that “it is very unlikely that

[a] defendant will be able to prove entrapment without testifying.” Mathews, 485



                                         -10-
U.S. at 65 (internal citations omitted). Here, Mr. Ross did not testify, nor did his

counsel present any other evidence to suggest Mr. Ross was an otherwise innocent

person who was not predisposed to engaging in this type of criminal activity.

Thus, the decision to not issue an entrapment instruction did not deny Mr. Ross of

a fair trial. The OCCA’s decision to affirm was, therefore, not an unreasonable

application of Supreme Court precedent, nor did the decision rest on an

unreasonable determination of the facts presented at Mr. Ross’s trial.

                             D. Ineffective Assistance

      Though he did not raise this issue in his direct appeal, Mr. Ross now argues

that he was denied effective assistance of counsel because his trial counsel did not

raise an entrapment defense and did not challenge the racial composition of the

jury. The OCCA apparently determined that review of this Sixth Amendment

claim was barred either by res judicata or the appellate court’s procedural bar rule,

but it is unclear which it thought applied. The OCCA’s decision lacks a “‘plain

statement’ that its decision rests upon adequate and independent state grounds.”

Harris v. Reed, 489 U.S. 255, 261-62 (1989) (quoting Michigan v. Long, 463 U.S.

1032, 1042 (1983)). Accordingly, we evaluate the merits of Mr. Ross’s ineffective

assistance of counsel claim. See id. at 263 (holding that a federal court on habeas

review may evaluate the merits of a claim where the last state court rendering a

judgment on that claim did not “clearly and expressly” state that the judgment

rested solely on independent state grounds).

                                         -11-
      “To prove ineffective assistance of counsel . . . , a defendant must show, by

a preponderance of the evidence, that (1) counsel’s performance fell below an

objective standard of reasonableness, and (2) prejudice, such that there is a

reasonable probability that but for counsel’s errors, the outcome of the trial would

have been different.” Young v. Sirmons, 486 F.3d 655, 674-75 (10th Cir. 2007)

(citing Strickland v. Washington, 466 U.S. 668, 692-93 (1984)). There is “a strong

presumption that trial counsel acted within the “wide range of reasonable

professional assistance[.]” Strickland, 466 U.S. at 689.

      Mr. Ross first argues that his counsel’s failure to pursue an entrapment

defense amounted to ineffective assistance. We disagree. In light of the

inculpatory evidence presented at trial, it is unlikely that the trial’s outcome would

have been different had Mr. Ross’s counsel pursued an entrapment defense.

Moreover, entrapment, as previously noted, requires a showing that a defendant

was not predisposed to engage in unlawful acts. Mathews, 485 U.S. at 63.

Pursuing such a defense would have opened up the door for more negative

evidence about Mr. Ross’s past drug addictions and criminal history, decreasing

the likelihood of a favorable verdict. Considering these circumstances, it was

reasonable for Mr. Ross’s counsel to not pursue an entrapment defense.

      Next, Mr. Ross argues that his counsel provided ineffective assistance by

not challenging the racial composition of the jury. Mr. Ross’s counsel objected to

the government’s use of a peremptory challenge once during voir dire. He

                                         -12-
requested “a race neutral reason why [a particular] juror was excused.” Tr. 100.

The government withdrew its challenge, and the juror remained on the jury panel.

Tr. 101. Mr. Ross’s counsel made no further objections about the racial

composition of the jury.

      The Equal Protection Clause is violated where a defendant is tried “before a

jury from which members of his or her race have been excluded by the State’s

purposeful conduct.” Powers v. Ohio, 499 U.S. 400, 404 (1991). While a

defendant does not have the right to a jury composed of people of his race, he does

have the right to have his jury chosen by nondiscriminatory criteria. Id. (citing

Strauder v. West Virginia, 100 U.S. 303, 305 (1879)). A defendant must establish

a prima facie case “by showing that the totality of the relevant facts gives rise to

an inference of discriminatory purpose” in the selection of jurors. Batson v.

Kentucky, 476 U.S. 79, 93-94 (1986).

      Mr. Ross argues that he was “purposefully denied the right to have a

member of his own race or any other race other than White” on his jury. This is

not enough, however, to establish a Batson claim. The Supreme Court has held

that proportional racial representation on petit juries is an impossibility not

required by the Sixth Amendment. See Batson, 476 U.S. at 86, n.6. The trial

record does not reveal any facts suggesting a discriminatory purpose.

Accordingly, Mr. Ross’s counsel did not act outside the range of reasonable

professional assistance required under Strickland. 466 U.S. at 689. Thus, Mr.

                                          -13-
Ross’s claims for ineffective assistance of counsel as well as his Batson claim are

denied.
                                  III. Conclusion

      For the foregoing reasons, we DENY Mr. Ross’s request for a COA and

DISMISS this appeal.

      Petitioner’s motion to proceed in forma pauperis is also DENIED.


                                                    Entered for the Court,


                                                    Michael W. McConnell
                                                    Circuit Judge




                                         -14-
