                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 12 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    LEONARD RENAL ROBERTS,

                Petitioner,

    v.                                                   No. 00-5085
                                                   (D.C. No. 97-CV-305-BU)
    RONALD J. CHAMPION,                                   (N.D. Okla.)

                Respondent.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.



         Pursuant to 28 U.S.C. § 2253(c), we previously granted petitioner a

certificate of appealability (COA) on the issue of whether his appellate counsel

was ineffective in failing to challenge on direct appeal the trial court’s instruction




*
        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not binding precedent, except under the doctrines of law of the case, res judicata,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.
to the jury that petitioner was presumed “not guilty,” rather than “innocent.”

The parties have briefed this issue, and we now address the merits.

      Petitioner was convicted of larceny in Tulsa County District Court.

Petitioner filed a direct appeal in the Oklahoma Court of Criminal Appeals

(OCCA), and the OCCA affirmed petitioner’s conviction, but reduced his

sentence. Petitioner filed his opening brief on direct appeal on April 20, 1994,

and the OCCA affirmed his conviction on August 25, 1995. In the interim, on

January 24, 1995, the OCCA issued its decision in     Flores v. State , 896 P.2d 558

(Okla. Crim. App. 1995). In    Flores , the OCCA held that a jury instruction stating

that a criminal defendant was presumed “not guilty,” rather than “innocent,” was

not harmless error, and the court vacated the defendant’s conviction on direct

appeal. Id. at 560-62. After the OCCA issued its opinion affirming his

conviction, petitioner filed a petition for rehearing arguing that the trial court had

charged the jury in his case with an identical presumed “not guilty” instruction

and that his conviction must therefore be vacated under     Flores . The OCCA

denied the petition for rehearing on the grounds that the OCCA’s procedural rules

did not permit a rehearing on an issue that was not raised in the appellant’s

opening brief. Petitioner subsequently filed an application for post-conviction

relief in the state district court. The state district court denied petitioner’s

application, and the OCCA affirmed on appeal.


                                           -2-
       On April 2, 1997, petitioner filed his habeas petition under § 2254 raising

the Flores issue, claims of ineffective assistance of trial and appellate counsel,

and a number of other issues. The district court denied petitioner’s habeas

petition in all respects. In his application for a COA, petitioner has reasserted the

issues raised in his § 2254 petition. He also claims that the district court erred in

not holding an evidentiary hearing on his petition.


              I. Flores and Ineffective Assistance of Appellate Counsel

       “[A]n appellate advocate may deliver deficient performance and prejudice a

defendant by omitting a ‘dead-bang winner.’”        United States v. Cook , 45 F.3d

388, 395 (10th Cir. 1995) (citation omitted). A “dead-bang winner” is “an issue

which was obvious from the trial record,      and one which would have resulted

in a reversal on appeal.”     Id. (citation omitted).

       Petitioner’s appellate counsel did not challenge the presumed “not guilty”

instruction in petitioner’s opening brief on direct appeal, and we must first decide

whether appellate counsel was ineffective in failing to challenge the instruction

before the Flores case was decided. This court has previously addressed this

issue, and we rejected the claim of a state habeas petitioner that “the basis of

reversal recognized in      Flores was obvious and should have been apparent to




                                             -3-
[petitioner’s] appellate counsel even before         Flores was decided.” Sherrill v.

Hargett , 184 F.3d 1172, 1176 (10th Cir.),      cert. denied , 528 U.S. 1009 (1999) . 1

       However, Sherrill is distinguishable because the OCCA did not publish its

opinion in Flores until over three years after the petitioner’s direct appeal was

completed in Sherrill . Id. at 1175. Here, by contrast, petitioner’s direct appeal

was still pending at the time   Flores was published. In addition, petitioner alleges

that, after his appellate counsel filed his opening brief, but before the OCCA

issued its decision in   Flores , he raised the Flores issue with his counsel and

instructed him to file a supplemental brief in the OCCA raising the issue.

Petitioner alleges that his appellate counsel refused to file a supplemental brief.

Thus, the issue here is whether the procedural rules in effect in the OCCA at the

time of petitioner’s direct appeal permitted petitioner to file a supplemental brief

raising the Flores issue.

       On their face, the procedural rules in effect in the OCCA during the

pendency of petitioner’s direct appeal prohibited the filing of supplemental briefs

on issues that were not raised in the opening brief.         See Okla. Stat. Ann. tit. 22,



1
       We note that, prior to the decision in   Sherrill , the OCCA had held that
Flores was based on preexisting Oklahoma case law and statutory rules and did
not announce a new rule of law.      Walker v. State , 933 P.2d 327, 338 (Okla. Crim.
App. 1997). However, Walker was not discussed in Sherrill , and it is unclear
whether the case was brought to the attention of this court at the time   Sherrill was
decided.

                                               -4-
ch. 18, app. Rules 3.4(F)(1) and 3.4(F)(2) (effective Aug. 1, 1993 and Sept. 14,

1994, respectively). However, a published decision of the OCCA indicates that,

in certain circumstances, the court would still review an issue raised for the first

time in a supplemental brief for “fundamental error.”    See Brown v. State ,

871 P.2d 56, 68 (Okla. Crim. App. 1994). Under Oklahoma law, “fundamental

error” is the same as “plain error,” and it involves errors “which go to the

foundation of the case, or which take from a defendant a right which was essential

to his defense.”   Simpson v. State , 876 P.2d 690, 695 (Okla. Crim. App. 1994)

(quotation omitted). The “fundamental error” standard also includes a “harmless

error review,” id. at 697-98, and it appears that this is the same standard of

review utilized by the OCCA in     Flores . See Flores , 896 P.2d at 560 (combining

a “plain” and “harmless” error analysis). Accordingly, we remand this matter

to the district court for an evidentiary hearing to determine whether petitioner’s

appellate counsel was ineffective in failing to seek leave to file a supplemental

brief based on a fundamental error analysis.     2




2
      On remand, the district court will also have to determine if, under federal
habeas standards, the giving of the presumed “not guilty” instruction was only
harmless error in light of the evidence presented at trial of petitioner’s guilt.
See Walker v. Gibson , 228 F.3d 1217, 1236-37 (10th Cir. 2000) (holding that
presumed “not guilty” instruction was harmless error for purposes of federal
habeas relief, and claim of ineffective assistance of appellate counsel, in light of
overwhelming evidence of defendant’s guilt),    petition for cert. filed (U.S. Apr.
18, 2001) (No. 00-9558).

                                           -5-
       Petitioner’s ineffectiveness claim has also placed in issue the adequacy of

the OCCA’s procedural rule, and respondent will have the burden on remand to

show that the rule prohibiting supplemental briefs was based on adequate state

grounds. See Hooks v. Ward , 184 F.3d 1206, 1216-17 (10th Cir. 1999). This will

require respondent to prove that, with respect to the       Flores issue, the OCCA has

applied the rule consistently and evenhandedly.         See Romano v. Gibson , 239 F.3d

1156, 1170 (10th Cir. 2001).


                  II. Alleged Disbarment of Petitioner’s Trial Counsel

       Petitioner alleges that, after his trial, his trial counsel was disbarred by the

Oklahoma Supreme Court for neglecting his defense and that his appellate

counsel was ineffective for failing to investigate this matter. Petitioner has also

alleged that his trial counsel failed to properly investigate the charges against him

and prepare for trial. Because petitioner’s allegations, if true, would entitle him

to habeas relief, we grant petitioner a COA on this issue and remand for an

evidentiary hearing.        See Walker v. Gibson , 228 F.3d 1217, 1231 (10th Cir. 2000),

petition for cert. filed     (U.S. Apr. 18, 2001) (No. 00-9558).   3



                           III. Ineffective Assistance of Trial Counsel


3
       Because petitioner attempted unsuccessfully to develop the factual basis
of his claims during the post-conviction proceedings in state court, his request
for an evidentiary hearing is governed by pre-AEDPA standards, rather than
§ 2254(e)(2). See Walker , 228 F.3d at 1231.

                                                -6-
       Petitioner’s trial counsel failed to object at trial to the presumed “not

guilty” instruction. However, any claim of ineffective assistance of trial counsel

with respect to the Flores issue is procedurally barred because: (1) petitioner had

separate trial and appellate counsel; and (2) this aspect of petitioner’s

ineffectiveness claim could have been resolved on the trial court record alone if

petitioner had asserted the claim on direct appeal.     See English v. Cody , 146 F.3d

1257, 1264 (10th Cir. 1998). We therefore deny a COA on this claim.

       Petitioner also claims that his trial counsel was ineffective in failing to

investigate a potential witness to determine whether she could have provided

exculpatory testimony at trial. The witness was allegedly an employee at the Wal-

Mart store where the larceny took place. Although petitioner failed to raise this

claim on direct appeal, there was no procedural default because this claim raises

issues that are outside of the trial court record.    Id. Although we are skeptical of

this claim, it is unrefuted on the present record, and petitioner’s allegations, if

true, would entitle him to habeas relief. We therefore grant petitioner a COA on

this claim and remand for an evidentiary hearing.

       Based on the foregoing, we GRANT petitioner a COA on the issues set

forth above and REMAND this matter for an evidentiary hearing. We DENY




                                               -7-
petitioner’s application for a COA in all other respects.      4
                                                                   Further, we DENY

petitioner’s motion for summary disposition and his appellate application to

proceed in forma pauperis as moot. On remand, if petitioner qualifies for the

appointment of counsel under 18 U.S.C. § 3006A(g), the district court shall

appoint counsel for petitioner pursuant to 28 U.S.C. § 2254 Rule 8(c).


                                                            Entered for the Court


                                                            Stephanie K. Seymour
                                                            Circuit Judge




4
       Petitioner also sought a COA on the following issues: due process
violation based on Flores issue, insufficient evidence, invalid prior convictions,
wrongful suspension of state habeas rights, prejudicial first stage jury instruction,
prejudicial evidence of other crimes, and prosecutorial misconduct.

                                             -8-
