                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 5 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 DERYL WAYNE COOK,

           Petitioner-Appellant,
 v.                                                       No. 98-5130
 RONALD J. CHAMPION, Warden,                         (D.C. No. 96-CV-757)
 Dick Connor Correctional Institution;                   (N.D. Okla.)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA, sued as:
 Drew Edmondson,

           Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY and BRISCOE, 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.

       Petitioner Deryl Wayne Cook appeals the district court’s denial of his 28


       This order and judgment is not binding precedent, except under the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.
U.S.C. § 2254 petition for habeas relief and denial of his application for a

certificate of appealability. We grant in part and deny in part Cook’s request for

a certificate of appealability and affirm the ruling of the district court.

          In 1991, Cook was convicted in Oklahoma of two counts of indecent

exposure after prior conviction of two or more felonies. He was sentenced to

twenty-five and thirty years’ imprisonment, to be served consecutively. The

Oklahoma Court of Criminal Appeals affirmed his conviction on direct appeal in

a summary opinion and denied his subsequent application for post-conviction

relief.

          On appeal, Cook raises two issues: (1) Introduction of hearsay testimony

violated his right to confront the witnesses against him; and (2) use of a

“presumed not guilty” rather than a “presumed innocent” jury instruction violated

his right to due process. We conclude that with respect to his Confrontation

Clause claim Cook “has made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), and we grant a certificate of

appealability on that issue. We deny Cook’s request for a certificate of

appealability with respect to his jury instruction claim and dismiss that portion of

the appeal.

          Because Cook filed his petition on August 16, 1996, our review is governed

by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996.


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See Lindh v. Murphy , 117 S. Ct. 2059, 2064 (1997). Under that Act, Cook is

entitled to relief only if the state court’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 resulted in a decision that 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). Any factual findings made by the

state court are presumed correct and will be disturbed only if shown to be

erroneous by clear and convincing evidence. 28 U.S.C. § 2254(e).

                              I. Confrontation Clause

       Cook’s Confrontation Clause claim has two components. First, he asserts

his confrontation rights were violated by admission at trial of hearsay evidence

that an eyewitness reported Cook’s license plate number to police. Second, he

argues his confrontation rights were violated by a police officer’s testimony that

the victims had picked Cook from a photographic lineup.

       Despite the asserted constitutional errors, much of Cook’s appellate brief is

devoted to analyzing the admissibility of the evidence under Oklahoma law. On

federal habeas review, however, our remedial powers extend to correcting

constitutional errors. On federal habeas review, we can afford no relief for

simple errors of state law.   See Tyler v. Nelson , 163 F.3d 1222, 1226 (10th Cir.

1999). Therefore, we consider Cook’s contentions only to the extent they


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implicate his constitutional rights.

      The charges against Cook stemmed from incidents that occurred on

September 5 and 8, 1991. On those days, as well as on September 7, a man on a

“shiny black” motorcycle rode by the home of ten-year-old Y and her parents. On

September 5 and September 7, Y was outside her house when the man rode by on

his motorcycle and, according to Y, the man exposed his genitals. Y was only

seven feet from the street when she saw the man. She did not report the

September 5 incident to her parents until the man again exposed himself on

September 7. Y described the man as an “old man, bald headed with glasses,”

riding a black motorcycle. In a subsequent conversation with police, Y stated the

motorcycle’s license plate included the number 718.

      Y’s mother saw the man expose himself on September 8. The mother was

standing outside with Y’s father and a neighbor when a man rode by on a

motorcycle. As Y ran from the house, she saw the man and exclaimed, “That’s

him, that’s him.” Tr. 16, 33. The mother testified the man “had his zipper down

with his genitals out” and tried “to cover up” when he saw adults standing in the

yard. Id. at 33. Y’s father got into his car and chased the man, apparently

recording the license plate number on the motorcycle as Y9797.

      The license plate number led police to Cook, who had four prior

convictions for indecent exposure. However, Y’s father, who was the only person


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who saw and recorded the Y9797 license plate number, did not testify at trial.

Instead, police officers testified over Cook’s hearsay objections that the suspect

reportedly was riding a motorcycle with license plate number Y9797. The

prosecutor referenced the license plate identification in both opening statement

and closing argument. Over Cook’s objection, one of the officers also testified

that the victims picked Cook’s photograph from a photographic lineup.

         Cook argues admission of testimony regarding the license plate number and

the photographic lineup violated his rights under the Due Process and

Confrontation Clauses. In considering Cook’s claim, we need not determine if the

evidence was admissible under Oklahoma rules of evidence. Rather, we ask only

whether the admitted evidence violated Cook’s Sixth Amendment right to

confront adverse witnesses. “For the admission of hearsay evidence to comply

with the Sixth Amendment, the witness must be unavailable and the statement

must bear ‘sufficient indicia of reliability.’”     Hatch v. Oklahoma , 58 F.3d 1447,

1467 (10th Cir. 1995) (quoting      Ohio v. Roberts , 448 U.S. 56, 65-66 (1980)). A

statement is reliable if it “falls within a firmly rooted hearsay exception” or is

accompanied by “particularized guarantees of trustworthiness.”         Roberts , 448 U.S.

at 66.

         The hearsay evidence admitted here satisfies neither of the    Roberts

requirements. There is no indication in the record that Y’s father, who recorded


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the license plate number, was unavailable to testify at trial and the state offers no

explanation for this witness’ absence. Further, the statements at issue do not fall

within a firmly rooted hearsay exception or appear to be particularly trustworthy.

The state does assert that evidence of the license plate was admissible as non-

hearsay because it was offered not for the truth of the matter asserted, but only to

explain the officers’ subsequent conduct in investigating Cook. Regardless of the

purpose for which the evidence was admitted, however, it is apparent from the

record that the prosecutor, over Cook’s objections, used the evidence in both

opening statement and closing argument for the sole purpose of proving Cook’s

guilt. Therefore, like the district court, we will assume admission of the evidence

violated Cook’s confrontation rights.

       Despite this violation of Cook’s constitutional rights, he is entitled to

habeas relief only if the trial error is not harmless.   See Crespin v. New Mexico ,

144 F.3d 641, 649 (10th Cir. 1998) (violation of Confrontation Clause is trial

error subject to harmless error analysis). In habeas proceedings, an error is

harmless only if it did not have “substantial and injurious effect or influence in

determining the jury’s verdict.”    1
                                        Brecht v. Abrahamson , 507 U.S. 619, 622



       1
        Because the Oklahoma Court of Criminal Appeals decided the issue in
summary fashion, it is unclear whether it applied any type of harmless error
review, or even concluded admission of the evidence violated Cook’s
confrontation rights.

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(1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)). If we are

in “grave doubt” about the harmlessness of the error, we must treat the error as

though it affected the verdict.   See O’Neal v. McAninch , 513 U.S. 432, 435

(1995). “Grave doubt” exists if “the matter is so evenly balanced that . . . [we

are] in virtual equipoise as to the harmlessness of the error.”   Id. In conducting a

harmless error analysis, our task is not to determine whether the evidence is

sufficient to support Cook’s convictions in the absence of the inadmissible

hearsay. See Tuttle v. Utah , 57 F.3d 879, 884 (10th Cir. 1995). Instead, “we

must determine, in light of the entire record, whether [the hearsay] evidence so

influenced the jury that we cannot conclude that it did not substantially affect the

verdict, or whether we have grave doubt as to the harmlessness of the errors

alleged.” Id.

       In Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986), the Supreme Court

set forth several factors that typically prove helpful in determining whether a

Confrontation Clause violation is harmless:

       Whether such an error is harmless in a particular case depends upon a
       host of factors, . . . includ[ing] the importance of the witness’
       testimony in the prosecution’s case, whether the testimony was
       cumulative, the presence or absence of evidence corroborating or
       contradicting the testimony of the witness on material points, the
       extent of cross-examination otherwise permitted, and, of course, the
       overall strength of the prosecution’s case.

Id. Applying these factors to the instant case, we conclude any Confrontation


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Clause violations were harmless.

      The license plate evidence at best linked Cook’s motorcycle with the

perpetrator. While this direct link was not unimportant, it was not critical in light

of the independent eyewitness identifications of Cook by Y and her mother. The

hearsay evidence was cumulative and unnecessary to the extent it was used to

place Cook at the crime scene.   See Crespin , 144 F.3d at 650 (error harmless

where evidence not required to place defendant in store at time of robbery). At

trial, Y identified Cook as the man who drove by her house and exposed himself

on September 5 and 7. Although she was only ten years old when the incident

occurred and eleven years old at the time of trial, Y did not retreat from her

positive identification of Cook. Her mother was equally adamant in her

identification of Cook.

      Some facts do weigh against a finding of harmlessness with respect to the

license plate evidence. Foremost among them is Y’s testimony that she initially

thought the license plate included the number 718. At trial, Y explained the

discrepancy by admitting her initial recollection must have been wrong. Also

weighing against a finding of harmlessness is the prosecutor’s reference to the

license plate number in opening statement and closing argument. These

references were brief, but forceful. In the prosecutor’s extremely short opening

statement, which consisted of one transcribed page in the trial record, he informed


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the jury that “[t]he big difference between the incident on the 5th and the incident

on the 8th was that somebody on the 8th got a vehicle description and a license

plate number. That information was used by police officers and detectives to find

this man, Deryl Wayne Cook.”       Tr. at 5. In closing argument, the prosecutor

specifically implored the jury to “look at the license plate number.”   Id. at 100.

       Although troubling, these facts must be viewed in light of the strength of

the prosecution’s case. Here, that case was not based on circumstantial evidence,

see Tuttle , 57 F.3d at 892, but on two positive eyewitness identifications of Cook

as the perpetrator.   Cf. Graham v. Wilson , 828 F.2d 656, 661 (10th Cir. 1987)

(numerous eyewitness identifications rendered error harmless). In light of the

significant strength of the prosecution’s case against Cook, the erroneous

admission of the license plate evidence and the resulting constitutional error did

not substantially and injuriously affect the jury’s verdict.

       Admission of the officer’s testimony regarding the photographic lineup,

which Cook does not suggest was impermissibly suggestive or otherwise

improper, also was harmless. At trial, both Y and her mother identified Cook. As

such, even if improperly admitted, the evidence was relatively unimportant to the

prosecution’s case and was cumulative. Moreover, Y, her mother, and the officer

who arranged the lineup were all available at trial and subject to cross-

examination. We conclude the officer’s testimony that Y and her mother picked


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Cook’s picture from a photographic lineup did not substantially affect the jury’s

verdict.

                                II. Jury instruction

       Cook contends he was deprived of a fair trial when the state district court

instructed the jury not that Cook was presumed innocent but that he was presumed

not guilty. Cook’s trial counsel did not object to the “presumed not guilty”

instruction at trial and appellate counsel did not raise the issue on appeal.

Instead, Cook raised the issue in his post-conviction application after the

Oklahoma Court of Criminal Appeals issued its opinion in        Flores v. State , 896

P.2d 558, 562 (Okla. Crim. App. 1995). In       Flores , the court ruled use of the

“presumed not guilty” instruction constituted reversible error. In this case, the

court ruled Cook waived the issue by not presenting it on direct review.

       An issue that is procedurally defaulted in state court on an adequate and

independent state law ground may not form the basis of a habeas petition unless

the petitioner establishes cause and prejudice to excuse the procedural default or

demonstrates that failure to consider the claim would constitute a fundamental

miscarriage of justice.   See Coleman v. Thompson , 501 U.S. 722, 749-50 (1991);

Rogers v. Gibson , 173 F.3d 1278, 1290 (10th Cir. 1999). Cook does not dispute

that Oklahoma’s waiver rule constitutes an adequate and independent state law

ground that we must respect. Instead, he asserts ineffective assistance of counsel


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excuses his procedural default. Although ineffective assistance of counsel may

serve as “cause” sufficient to overcome a procedural bar,        see Ross v. Ward , 165

F.3d 793, 798 (10th Cir. 1999), Cook simply asserts without comment that his

trial and appellate counsel were ineffective. Nowhere does he offer any

substantive explanation of how he was prejudiced by the “presumed not guilty”

instruction.

       Cook cannot demonstrate deficient performance by his counsel in any

event. Flores was decided after Cook’s trial and direct appeal were complete.

Cook’s attorney did not have the benefit of      Flores or any other case law casting

doubt on the propriety of the “presumed not guilty” instruction. Counsel is not

ineffective for failing to anticipate arguments on issues that had no basis in law at

the time of trial or appeal.   See Sherill v. Hargett , 1999 WL 492682 (10th Cir.

1999) (rejecting same contention presented by Cook).

                                    III. Conclusion

       We GRANT Cook a certificate of appealability with respect to his

Confrontation Clause claim and AFFIRM the district court’s ruling denying Cook

habeas relief. We DENY Cook a certificate of appealability with respect to his

due process claim and DISMISS that portion of his appeal. The mandate shall

issue forthwith.

                                                     Entered for the Court


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       MARY BECK BRISCOE
       Circuit Judge




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