                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 28, 2008
                                                                 Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                      Clerk of Court


 BRADLEY PRICE BARBER,

             Petitioner-Appellant,

 v.                                                     No. 07-6170
                                                 (D.C. No. 06-CV-1260-W)
 JUSTIN JONES, D.O.C. Director,                        (W.D. Okla.)

             Respondent-Appellee.


                                      ORDER


Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Bradley Price Barber, 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 brought under 28 U.S.C. § 2254.

Because we conclude that Mr. Barber 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).

                                 BACKGROUND

      Mr. Barber was convicted after a jury trial in state district court of unlawful

manufacturing of a controlled dangerous substance (methamphetamine) after two
or more felony convictions. The district court sentenced him to 50 years’

incarceration and a $50,000 fine. 1

      Most of Mr. Barber’s issues in this appeal relate to a search of his motel

room that uncovered evidence used against him at his trial. The evidence at trial

revealed that a “911” operator received a call concerning a possible domestic

assault in progress in a room at the Economy Express Motel in El Reno,

Oklahoma. The call came from a female subject who claimed to have witnessed

the assault. The El Reno Police Department dispatched Officer Bobby Owens to

the motel to investigate.

      Upon arriving at the motel, Officer Owens knocked on the motel room door

and identified himself as a police officer. There was no response. He continued

to knock and identify himself as an officer for about two minutes, without

receiving any response. He then confirmed the room number with dispatch and

had the motel manager bring him a key to the room.

      Meanwhile, two more officers, Officers Jourdan and Nelms, arrived at the

motel. The officers explained to the manager that they needed to enter the room



1
       The jury also convicted him of possession of drug paraphernalia, for which
he was sentenced to one year of incarceration in the county jail with no fine. The
possession charge was brought in a separate case that was tried together with the
unlawful manufacturing case. While his habeas petition addresses only the
manufacturing charge, the existence of the separate charge contributed
significantly to the jury confusion resulting in his motion for a mistrial that is
addressed as one of his issues, infra.

                                        -2-
to determine whether there was anyone injured or in need of assistance in the

room. Officer Owens opened the door with the key the manager brought him.

      Inside the room, Officer Owens observed a woman, later identified as

Michelle McCormack, lying on the bed. The room’s telephone was on the floor,

knocked over and upside down with the phone off the hook. Ms. McCormack was

fully clothed and did not appear to have been physically abused. She seemed

upset, however, to have the officers present. She told them she was fine, behaved

in a standoffish manner, and acted as though she wanted them to leave. In

response to a question from Officer Owens, she stated that there was no one else

in the room.

      While Officer Owens questioned Ms. McCormack, Officers Jourdan and

Nelms walked through the room to secure it for officer safety. The room had a

separate bathroom in back, with its own door. Officer Nelms went back to the

bathroom to make sure there was no one hiding in it. He found the bathroom door

partially open. The light inside the bathroom was off.

      Officer Nelms obtained a flashlight from Officer Owens. He shined the

flashlight beam through the space created by the partially opened door onto the

toilet and the shower area, but saw no one. When he attempted to open the door

wider to continue the search, however, someone pushed the door closed from the

inside. Officer Nelms tried to kick the door back open, but it bounced back as

though someone were holding it shut.

                                        -3-
      Officer Nelms announced that he was a police officer and told the person

inside to come out. The person stated he was using the toilet. Officer Nelms

again told the person to leave the bathroom, which he did. The bathroom’s

occupant was Mr. Barber. After he removed Mr. Barber, Officer Nelms entered

the bathroom to make sure there was no one else in the room. He found no one,

but observed the cap from the top of a syringe lying on the bathroom floor.

      As he walked back through the motel room, Officer Nelms observed

evidence of the presence of illegal drugs and paraphernalia in the room. On the

bathroom sink counter he saw a wash tub with milky white water with a syringe

floating in it. Across from the bathroom door, on the shelf above the clothes

rack, he found two ziploc baggies, one with white powder in it and another with

red pills in it. In the main part of the room, he observed a food processor with

white powder in it. Next to the food processor was a pill bottle containing

pseudoephedrine pills. On a night stand next to the bed, he saw a baggie with a

white powder residue inside of it.

      The officers arrested Mr. Barber and Ms. McCormack, secured the room,

and obtained a search warrant. Execution of the warrant provided more evidence

of methamphetamine manufacturing, resulting in the filing of charges and,

eventually, in Mr. Barber’s conviction.

      The Oklahoma Court of Criminal Appeals (OCCA) upheld Mr. Barber’s

conviction on direct appeal. The district court denied him post-conviction relief,

                                          -4-
and the OCCA affirmed. He then filed this § 2254 proceeding in federal district

court. A magistrate judge assigned to the case recommended that he be denied an

evidentiary hearing and that his petition be denied. After considering his

objections to the magistrate judge’s report, the district court denied the petition

and denied him a COA. This appeal followed.

                                     ANALYSIS

      1. Standard for Obtaining a COA

      “A certificate of appealability may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). This

standard requires “a demonstration that ... includes showing 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) (internal quotation marks omitted). In other words, an

applicant must show that the district court’s resolution of the constitutional claim

was either “debatable or wrong.” Id. In determining whether to issue a COA, a

“full consideration of the factual or legal bases adduced in support of the claims”

is not required. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Instead, the

decision must be based on “an overview of the claims in the habeas petition and a

general assessment of the merits.” Id.




                                          -5-
      2. Fourth Amendment Issues Relating to Search

      Mr. Barber’s first four issues all concern his contention that the search of

the motel room violated his Fourth Amendment rights. He argues (1) that he has

standing to object to the illegal entry, the initial, warrantless search, and the later,

warranted search of the room; (2) that the motel manager lacked authority to grant

the officers consent to enter the room; (3) that the officers should have left the

room once they determined that no offense had been committed; and (4) that the

search warrant affidavit contained unreliable, insufficient, and suppressible

information and was therefore invalid.

      Mr. Barber litigated his Fourth Amendment issues extensively in the

Oklahoma courts. He moved in state district court on four separate occasions to

suppress the evidence found in the motel room: at the preliminary hearing, in two

separate pretrial motions, and on a motion heard on the first day of trial. He also

asserted these issues on direct appeal to the OCCA.

      The federal magistrate judge determined that Mr. Barber was not eligible

for relief on his Fourth Amendment claims in a § 2254 proceeding. We agree.

      Where a state “has provided an opportunity for full and fair litigation of a

Fourth Amendment claim,” a state prisoner is not entitled to federal habeas

corpus relief on the basis that evidence obtained in an illegal search or seizure

was presented at his trial. Stone v. Powell, 428 U.S. 465, 482 (1976). We review

de novo whether a petitioner had a full and fair opportunity to litigate his Fourth

                                          -6-
Amendment claims in state court. Cannon v. Gibson, 259 F.3d 1253, 1260 (10th

Cir. 2001). Having reviewed the record, we conclude that Mr. Barber was

provided with such an opportunity. We therefore reject his Fourth Amendment

claims. 2

         3. Fourth Amendment Issue Relating to Arrest

         Mr. Barber next argues that his arrest was illegal and represented an abuse

of process, because the police knew that the reporting phone call was not from an

actual eyewitness and was not made from his motel room. The magistrate judge

ruled that this claim was “merely a reformulation of [Mr. Barber’s] Fourth

Amendment theories” and was therefore barred by Stone. R., doc. 22, at 5. We

agree.

         Mr. Barber argues that Stone does not apply to this issue, because the

arresting officers’ conduct in “creating an ‘exigent circumstance’ through fraud

and de[]ception . . . was in violation of the 14th Amendment and that is not the

same as the 4th Amendment.” Aplt. Br. at 16. A person who asserts that his

arrest or physical incarceration was unreasonable or unwarranted, however, is

making a Fourth Amendment argument–he cannot use the Fourteenth Amendment


2
       Mr. Barber contends that his opportunity to litigate his Fourth Amendment
claims was not “full and fair” because his attorney was constitutionally
ineffective. This claim is more properly viewed as an assertion of ineffective
assistance of counsel than an argument about full and fair opportunity to be heard.
In fact, Mr. Barber also raises such an argument as a freestanding ineffective
assistance claim, which we consider later in this order.

                                          -7-
as “a fallback to protect interests more specifically addressed by the Fourth

Amendment in this context.” Becker v. Kroll, 494 F.3d 904, 919 (10th Cir. 2007).

Mr. Barber’s claim is a Fourth Amendment claim, and it is barred by Stone.

      4. Ineffective Assistance of Trial Counsel

      Mr. Barber next recasts his complaint about that search of his motel room

in the form of an ineffective assistance of counsel claim. He argues that his

attorney should have identified and subpoenaed the person who made the

telephone call to police concerning the alleged domestic violence situation in his

motel room, as well as the police operator who took the call. Had these people

been questioned, he contends, it could have been established that the person who

made the call was not in the room, but at a remote location, thus casting doubt on

the theory that exigent circumstances required a warrantless entry into the room.

      While Stone does not bar this Sixth Amendment claim, to prevail on it,

Mr. Barber must establish that his attorney was constitutionally ineffective.

Under the two-part test established by the Court in Strickland v. Washington,

466 U.S. 668 (1984), he must prove that “counsel’s representation fell below an

objective standard of reasonableness” and that “any deficiencies in counsel’s

performance [were] prejudicial to the defense.” Id. at 688, 692. Both the OCCA

and the district court reasoned that Mr. Barber failed to show the alleged

omissions prejudiced him, because his attorney presented other, undisputed




                                         -8-
evidence that the call originated from outside the room. We agree, and therefore

reject his ineffective assistance claim.

      5. Sufficiency of Evidence Claims

      Mr. Barber next asserts two claims based on alleged denial of due process.

In his seventh claim, he argues that the case against him should have been

dismissed at the preliminary hearing, because the state failed to establish probable

cause to bind him over for trial. Once again, his argument contains an allegation

that no exigent circumstances existed because the telephone call to the police

came from a third party and from a remote location. Therefore, he argues, the

evidence found in the motel room should have been suppressed, leaving

insufficient evidence to bind him over for trial. But this is just another iteration

of his Fourth Amendment argument, which we cannot reach in this habeas

proceeding.

      Stripped of its Fourth Amendment baggage, the remainder of Mr. Barber’s

preliminary hearing claim rests on whether there was sufficient evidence to bind

him over for trial. For the same reasons cited by the magistrate judge, see R.,

doc. 22, at 13-15, we conclude that there was.

      Mr. Barber’s eighth claim also rests on an alleged lack of evidence. He

asserts that the district court should have granted a directed verdict in his favor

because there was insufficient evidence, without the illegally-seized evidence, to

convict him of manufacturing methamphetamine. This, however, is merely

                                           -9-
another attempt to recast his Fourth Amendment claim into an acceptable form,

and it therefore fails. 3

       5. Constitutionally Excessive Sentence

       Mr. Barber argues that his sentence to 50 years’ incarceration and a

$50,000 fine represents “cruel and unusual punishment” under the Eighth

Amendment to the United States Constitution, particularly given the non-violent

nature of his crime. The OCCA procedurally barred this claim, because he failed

to raise it on direct appeal. Mr. Barber argued to the OCCA that the procedural

bar should be excused because his counsel had been constitutionally ineffective in

failing to raise the claim on direct appeal. The OCCA responded that “failure to

raise even a meritorious claim does not, in itself, constitute deficient

performance.” Id., doc. 13, ex. 9, at 6.


3
       Mr. Barber attempts to go beyond this argument, however, and contends
that even the evidence found as the result of the search fails to show that he
actually manufactured methamphetamine. Thus, on page 26 of his brief, he
argues:

       There was no working meth lab found. The motel room had been
       rented by Ms. McCormack. It was testified that various others came
       and went into and out of the motel room. . . . There was absolutely
       no evidence that drugs had in fact been manufactured in the motel
       room, or that Mr. Barber had anything to do with the items found.

      This was not how this issue was presented to and decided by the OCCA,
however, see “Amended Brief in Support of Petition in Error,” R., doc. 13, ex. 8,
at 25-26; “Order Affirming Denial of Post-Conviction Relief,” id. ex. 9, at 5, and
we therefore decline to consider the issue as expanded in his brief in this appeal.


                                           -10-
      We have previously criticized the OCCA for use of similar verbiage to

reject claims of ineffective assistance of appellate counsel without assessing the

merit of the underlying claims. See Cargle v. Mullin, 317 F.3d 1196, 1204

(10th Cir. 2003). Here, it is unclear whether the OCCA reflexively denied Mr.

Barber’s assertion of ineffective assistance or actually considered his underlying

Eighth Amendment claim and found Strickland’s prejudice element unsatisfied

because the claim lacked merit. See Order Affirming Denial of Post-Conviction

Relief, R., doc. 13, ex. 9, at 6 (stating “[p]etitioner’s arguments and authorities

fall short of proving appellate counsel was ineffective” and “the authorities cited

by Petitioner . . . do not reveal reversible error in the District Court’s finding.”).

But even if we concluded that the OCCA did not conduct an adequate Strickland

analysis and that we should therefore excuse the procedural bar, the claim fails

because Mr. Barber has failed to make a substantial showing of the violation of a

constitutional right on this claim.

      “A gross disproportionality principle is applicable to sentences for terms of

years.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). “[T]he Eighth Amendment

prohibits imposition of a sentence that is grossly disproportionate to the severity

of the crime.” Ewing v. California, 538 U.S. 11, 21 (2003). Only in the

“exceedingly rare” and “extreme” case, however, will a non-capital sentence be

so disproportionate to the offense for which it is imposed that it violates the

Constitution. Lockyer, 538 U.S. at 73 (quotations omitted).

                                          -11-
      Although harsh, Mr. Barber’s sentence is not one of those exceedingly rare

or extreme cases that stumbles over the gross disproportionality principle. The

manufacture of methamphetamine is a serious crime. Mr. Barber had at least six

prior felony convictions. The statutory maximum conviction for his

manufacturing offense was life imprisonment. We conclude that the sentence he

received was not constitutionally grossly disproportionate to the crime. See, e.g.,

Harmelin v. Michigan, 501 U.S. 957, 961-62, 1005 (1991) (upholding life

sentence without possibility of parole for possession of more than 650 grams of

cocaine); Hutto v. Davis, 454 U.S. 370, 371, 375 (1982) (upholding forty-year

sentence for possession and distribution of nine ounces of marijuana). We

therefore reject his Eighth Amendment argument.

      6. Equal Protection Claim

      Mr. Barber also contends that his sentence offends the Equal Protection

Clause because it is disproportionate to the four-year sentence received by his

co-defendant, Ms. McCormack. She initially was charged with unlawful

manufacture of a controlled dangerous substance, unlawful possession of a

controlled dangerous substance, and unlawful possession of drug paraphernalia.

She pleaded guilty to one count of maintaining a place for the keeping or selling

of a controlled dangerous substance, for which she received the four-year

sentence. She testified against Mr. Barber at trial.




                                        -12-
      The overwhelming majority of the fifty-year sentence Mr. Barber received

arose under Okla. Stat. tit. 21, § 51.1(C), which provides that

      [e]very person who, having been twice convicted of felony offenses,
      commits a subsequent felony offense within ten (10) years of the date
      following the completion of the execution of the sentence, and
      against whom the District Attorney seeks to enhance punishment
      pursuant to this section of law, is punishable by imprisonment in the
      State Penitentiary for a term in the range of three times the minimum
      term for a first time offender to life imprisonment.”

      Mr. Barber has failed to show that Ms. McCormack was eligible for this

enhancement. 4 Moreover, she chose to plead guilty rather than to proceed to trial.

She thus was not similarly situated to him for sentencing purposes and his equal

protection claim therefore lacks merit. See Grace United Methodist Church v.

City of Cheyenne, 451 F.3d 643, 659 (10th Cir. 2006) (“Equal protection is

essentially a direction that all persons similarly situated should be treated alike.”

(quotation omitted)).

      7. Denial of Motion for Mistrial

      Mr. Barber contends that the trial court should have granted a mistrial

(1) after the jury initially returned a non-unanimous verdict, a problem that was

corrected; (2) after the jury foreperson marked the verdict forms incorrectly

creating an inconsistent verdict, which was also corrected. The OCCA found


4
       While Ms. McCormack acknowledged at the time of trial that she had been
twice convicted of committing a felony, see Trial Tr., Vol. II, at 118, it appears
that one of those convictions was the conviction in this case, which could not be
counted as a “prior” felony for purposes of section 51.1(C).

                                         -13-
these claims procedurally barred because they were not raised on direct appeal.

Mr. Barber argued that his appellate attorney should have raised the claim. For

the same reasons noted previously in our discussion of his excessive sentence

claim, the OCCA rejected this ineffective assistance argument. Also as

previously noted, its reasons for doing so are problematic. Nevertheless,

Mr. Barber is not entitled to a COA on this claim. 5

      Although Mr. Barber was charged with manufacturing methamphetamine,

the trial court instructed the jury that it could instead convict on the lesser-

included offense of unlawful possession of methamphetamine. Accordingly, it

submitted three verdict forms to the jury, each form asking it to return a verdict

of “guilty” or “not guilty” to one of the following crimes: manufacturing

methamphetamine, unlawful possession of methamphetamine, and unlawful

possession of drug paraphernalia (the charge in a separate case tried together with

this one).

      The jury initially returned a verdict of guilty of manufacturing a controlled

dangerous substance and unlawful possession of drug paraphernalia. Mr. Barber

asked that the jury be polled. During the polling, the foreperson of the jury

indicated that this verdict was not her “true and correct verdict.” Trial Tr.,

Vol. III, at 88. The remaining jurors indicated that the verdict was correct. Upon

5
      We set out the facts relevant to this claim in some detail. The facts
Mr. Barber asserts in his brief pertaining to this claim are, in many cases,
inaccurate.

                                          -14-
questioning by the trial court, the foreperson indicated that although the jury

verdict forms were correctly marked, this was not her verdict. Mr. Barber moved

for a mistrial.

       The trial court did not grant a mistrial. Instead, it asked the jurors whether

they believed that, with additional deliberation, they could reach a unanimous

verdict, “whether that be guilty or not guilty.” Id. at 91. After several jurors

nodded yes, the court provided the jury with a second set of the three verdict

forms and sent the jurors back for another round of deliberations.

       After approximately an hour of deliberations, the jury returned verdict

forms showing Mr. Barber guilty of manufacturing methamphetamine and

unlawful possession of methamphetamine. They did not mark the paraphernalia

form either “guilty” or “not guilty.” This verdict was unlawful, because it

improperly convicted Mr. Barber of both the crime of manufacturing and the

lesser included offense of possession, but reached no verdict on the separate

paraphernalia charge. He once again requested a mistrial.

       After indicating that he was leaning toward granting a mistrial, the trial

court judge decided to ask the jury foreperson to explain the verdict. She stated

“I marked the wrong page.” Id. at 101. The district court then provided the jury

with a third set of verdict forms and asked them to deliberate further. This time

the jury returned verdict forms showing a consistent verdict, finding Mr. Barber

guilty of manufacturing methamphetamine and possession of drug paraphernalia.

                                         -15-
The jury was again polled, and this time each juror indicated that this was his or

her verdict.

      Mr. Barber renewed his motion for a mistrial. The trial court took the

motion under advisement, but denied it the next morning, reasoning that “the

Court does have the prerogative of sending a jury back out to correct . . . what

appears to be any mistakes.” Trial Tr., Vol. IV, at 4.

      Mr. Barber argues that the trial court coerced the jury into reaching a

unanimous guilty verdict. We do not agree. After one of the jurors indicated she

disagreed with the verdict, the trial judge did not suggest what the jury’s verdict

should be; it merely sent the jury back for further deliberations. There is nothing

inherently coercive or unconstitutional in this practice, which is required by state

law. See Okla. Stat. tit. 22, § 921 (“When a verdict is rendered, and before it is

recorded, the jury may be polled on the requirement of either party, in which case

they must be severally asked whether it is their verdict, and if any one answer in

the negative, the jury must be sent out for further deliberation.” (emphasis

added)). Cf. Fed. R. Crim. P. 31(d) (“If the [jury] poll reveals a lack of

unanimity, the court may direct the jury to deliberate further or may declare a

mistrial and discharge the jury.” (emphasis added)). The fact that the jury took

another hour to reach a unanimous verdict also suggests an absence of coercion.

See Lyell v. Renico, 470 F.3d 1177, 1184 (6th Cir. 2006) (“After the court sent the

jury back to deliberate [because one juror dissented from the verdict during the

                                         -16-
poll], it took an hour for the jury ultimately to reach a unanimous verdict . . .

suggesting that when [the juror] changed her mind . . . coercion was not the

cause.”).

      The fact that the foreperson mis-marked the verdict form after the further

deliberations the trial court ordered, and was then instructed to correct the form,

does not indicate an unconstitutional level of coercion, even when combined with

the earlier instruction to continue deliberations. See, e.g., Jones v. Estelle,

538 F.2d 651, 651-52 (5th Cir. 1976); Anderson v. Miller, 346 F.3d 315, 316-24,

329-30 (2d Cir. 2003) (denying habeas relief where single juror dissented from

initial verdict during first poll; jurors were ordered to continue deliberations; jury

then returned inconsistent verdict; court required further deliberations; jury

returned third verdict convicting defendant of all three counts, including lesser

included offense; two jurors were “crying” and “hesitant” during second poll

taken after third verdict; court adjusted third verdict to be consistent by

dismissing conviction for lesser-included offense; and two jurors later signed

affidavits and testified at subsequent evidentiary hearing that their verdict was

“not guilty” and they had been coerced by fellow jurors into third, guilty verdict).

      8. Ineffective Assistance of Appellate Counsel

      Mr. Barber next argues that his appellate counsel was constitutionally

ineffective for failing to raise in his direct appeal the issues he later presented in

his application for post-conviction relief. For the reasons we have explained,

                                          -17-
Mr. Barber fails to show prejudice sufficient to satisfy the Strickland test–a

likelihood of a different outcome on his direct appeal–had the issues been

presented by his appellate counsel. We therefore reject his ineffective assistance

claim.

         9. Evidentiary Hearing

         As the magistrate judge explained, see R., doc. 22, at 27-28, Mr. Barber’s

request for an evidentiary hearing is governed by pre-AEDPA standards, which

afford him an evidentiary hearing only if factual proof of his allegations would

have justified habeas relief. See Miller v. Champion, 161 F.3d 1249, 1253

(10th Cir. 1998). We agree with the magistrate judge that on the issues he has

raised, the proof to be adduced at such a hearing would not support habeas relief.

We therefore reject his claim of entitlement to an evidentiary hearing.

                                   CONCLUSION

         We grant Mr. Barber’s motion to proceed on appeal in forma pauperis. See

28 U.S.C. § 1915. His request for a COA is DENIED and this appeal is

DISMISSED.


                                             Entered for the Court,




                                             ELISABETH A. SHUMAKER, Clerk




                                          -18-
