                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 27, 2008
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 ROBERTO ANTONIO JACKSON,

              Petitioner - Appellant,

 v.                                                     No. 08-6099
                                                      (W.D. Oklahoma)
 CHARLES RAY, Warden,                           (D.C. No. 5:07-CV-00316-D)

              Respondent - Appellee.



          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      Roberto Antonio Jackson, appearing pro se, requests a certificate of

appealability (COA) to appeal the district court’s denial of his application for a

writ of habeas corpus under 28 U.S.C. § 2254. See id. § 2253(c) (requiring COA

to appeal denial of application). Because no reasonable jurist could conclude that

Mr. Jackson’s § 2254 application should have been resolved in a different

manner, see Slack v. McDaniel, 529 U.S. 473, 485 (2000), we deny his request for

a COA and dismiss this appeal.
I.     BACKGROUND

       Mr. Jackson was convicted in 2003 in Oklahoma state court on one count of

possession with intent to distribute marijuana and one count of possession with

intent to distribute cocaine. He was sentenced to 30 years’ imprisonment on each

count, the terms to be served concurrently. On direct appeal the Oklahoma Court

of Criminal Appeals (OCCA) affirmed his convictions and sentence. Mr. Jackson

pursued state postconviction relief, but the OCCA affirmed the trial court’s denial

of relief.

       On March 13, 2007, Mr. Jackson filed his § 2254 application in the United

States District Court for the Western District of Oklahoma. His application raised

six claims: (1) that the trial court erroneously denied his motion to suppress; (2)

that he was denied due process in connection with his state postconviction

proceedings; (3) that his convictions on the two drug-possession counts violated

the prohibition against double jeopardy; (4) that trial and appellate counsel

rendered ineffective assistance; (5) that his sentence is disproportionate and

excessive; and (6) that he is “‘actually innocent’ of the two thirty (30) year

sentences” he received, R. Doc. 1 at 3 (full capitalization omitted). The district

court denied him relief.

II.    DISCUSSION

       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). This standard

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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, 529 U.S. at 484 (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.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes 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,” 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)(1), (2). As we have stated,

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court's decisions but unreasonably applies that
      principle to the facts of the prisoner's case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.


                                         -3-
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations and

internal quotation marks omitted). In addition,

       [f]actual determinations by state courts are presumed correct absent
       clear and convincing evidence to the contrary, § 2254(e)(1), and a
       decision adjudicated on the merits in a state court and 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, § 2254(d)(2).

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). For those of Mr. Jackson’s

claims that were adjudicated on the merits in the state court, “AEDPA's

deferential treatment of state court decisions must be incorporated into our

consideration of [his] request for COA.” Dockins v. Hines, 374 F.3d 935, 938

(10th Cir.2004).

       Mr. Jackson’s application for a COA and appellate brief challenge the

denial of the claims in his § 2254 application. We proceed to address each claim

in turn.

       We need not review the merits of Mr. Jackson’s claim that the “trial court

erred in overruling [his] motion to suppress.” Aplt. Br. at 9 (full capitalization

omitted). This claim was raised in state court and rejected on the merits.

Therefore, federal habeas review is not available. See Stone v. Powell, 428 U.S.

465, 494 (1976) (“[W]here the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may not be granted




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federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at trial.” (footnote omitted)).

      We can also summarily dispose of Mr. Jackson’s claim that his state

postconviction proceedings were “violative of the basic due process clause of the

federal constitution and the decisions therefrom are clearly contrary to the

Supreme Court precedent.” Aplt. Br. at 15 (full capitalization omitted). Habeas

relief under § 2254 is granted only for errors in the state judgment forming the

basis for incarceration. If that judgment was proper, there is no ground for

habeas relief based on flaws in state postconviction proceedings. Thus, claims

such as Mr. Jackson’s “fail to state a federal constitutional claim cognizable in a

federal habeas proceeding.” Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.

1993); see Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998).

      Mr. Jackson’s double-jeopardy claim is based on his contention that his two

drug-possession convictions (for possession of marijuana and possession of

cocaine) required proof of the same elements—namely, that he “(1) [k]nowingly

(2) possessed (3) a controlled dangerous substance.” Aplt. Br. at 6. But even if

his two crimes were similar, the prohibition against double jeopardy in the

multiple-punishment context is limited to forbidding a greater punishment than

the legislature intended. See Brown v. Ohio, 432 U.S. 161, 165 (1977). The

OCCA concluded that Mr. Jackson’s two convictions were for “separate and

distinct” crimes because the cocaine and marijuana were “found in different

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packages within the car.” Jackson v. Oklahoma, No. F-2003-1313, Summ. Op. at

2 n.2 (Okla. Crim. App. Feb. 2005). “In a habeas corpus proceeding under

section 2254, a federal court should defer to a state court’s interpretation of state

law in determining whether an incident constitutes one or more than one offense

for double jeopardy purposes.” Mansfield v. Champion, 992 F.2d 1098, 1100

(10th Cir. 1993). Accordingly, the district court’s denial of relief on this ground

was correct.

       Mr. Jackson contends that his trial and appellate counsel deprived him of

the Sixth Amendment right to effective assistance of counsel “through conflict of

interest and or divided loyalties.” Aplt. Br. at 17 (full capitalization omitted). He

states that:

       trial counsel was ineffective in that counsel induced his waiver of a
       jury trial because of Mr. Jackson’s financial inability to sustain the
       costs had the case proceeded to jury trial; counsel’s false promise of
       a lesser sentence; counsel’s refusal to allow Mr. Jackson to testify on
       his own behalf; counsel’s failure to advise Mr. Jackson on issues
       concerning strategy and allowing Mr. Jackson to stipulate to an
       illegal sentence.

Id. at 18. As for appellate counsel’s performance, he contends that counsel

“failed to advocate Mr. Jackson’s cause; failed to consult with him concerning

important decisions; failed to inform him of developments in the case, and failed

to make reasonable investigations” and that appellate counsel failed “to move for

an evidentiary hearing in state court to develop facts not contained in the record.”

Id. at 21.

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      To obtain relief on his ineffective-assistance-of-counsel claims,

Mr. Jackson must show both that his “counsel’s representation fell below an

objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668,

688 (1984), and “that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different,” id.

at 694. The review of trial counsel’s performance “must be highly deferential”

and the court “must indulge in a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 689 (internal quotation

marks omitted).

      In its denial of postconviction relief the OCCA stated that Mr. Jackson

“ha[d] not established trial or appellate counsel’s performance was deficient or

that the result of his appeal was not reliable and fair.” R. Doc. 17, Ex. 6 at 2.

The district court adopted the magistrate judge’s recommendation that relief

should be denied on the ground that “[Mr. Jackson] failed to allege sufficient

facts to support his claim that trial counsel’s performance was so defective and

prejudicial it deprived him of the right to the effective assistance of counsel

because he has not explained the facts relevant to the deficiencies alleged,”

R. Doc. 21 at 18, and that “[he] ha[d] failed to show prejudice stemming from

appellate counsel’s failure to seek expansion of the record on appeal,” id. at 19.

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With respect to all but two of Mr. Jackson’s ineffectiveness claims, we believe

that no reasonable jurist could dispute the district court’s ruling. See Ruark v.

Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (“‘[N]aked allegations’ [of ineffective

assistance of counsel] are not cognizable under § 2254.”). Two claims,

however—his allegations that counsel pressured him to waive a jury trial and not

to testify at trial—require further discussion.

      To evaluate those claims, it is important to understand the nature of

Mr. Jackson’s “trial.” First, Mr. Jackson and his codefendant waived their rights

to a jury trial. Then the bench trial proceeded under the following stipulation of

the State, Mr. Jackson, and his codefendant:

             It is hereby stipulated and agreed by and between the parties
      hereto, the State of Oklahoma, Plaintiff, and Roberto Antonio
      Jackson and Fredrich Scott, Defendants, that in Texas County, State
      of Oklahoma, on the 17th day of January, 2003, said Defendants
      were operating a vehicle in which arresting officers found
      approximately 97 grams of cocaine base, a controlled dangerous
      substance as defined in Schedule II of the Uniform Controlled
      Dangerous Substances Act, and approximately 109 grams of
      marijuana, a controlled dangerous substance as defined in Schedule I
      of the Uniform Controlled Dangerous Substances Act.
             And further, that the arresting officers would testify that the
      foregoing amounts were in excess of the amount that would be
      consistent with personal use; and that each Defendant has been
      formerly convicted of a prior felony offense as charged in the Fourth
      Amended Information filed herein; and that such convictions are
      final.
             It is further agreed that this stipulation is entered into by the
      parties in contemplation of its use by the District Court in
      determining the guilt of the Defendants of the offenses as set out in
      the Fourth Amended Informations filed herein, charging the crimes
      against each Defendant of unlawful possession of controlled

                                          -8-
      dangerous substances, with intent to distribute, after former
      conviction of a felony.
             It is further agreed that the recommended punishment by the
      State of Oklahoma, if said Defendants are found guilty of the
      offenses charged in the Fourth Amended Informations, will be a
      sentence of 30 years’ imprisonment on each count, with Count 2 to
      be served concurrently with Count 1.
             The Defendants are to receive credit against such sentences for
      each day spent in the Texas County Detention Center awaiting trial.
             It is further agreed by the parties hereto that the District Court
      may consider all testimony it has received in the hearings on the
      motions to suppress evidence held before it and consider all
      testimony and other evidence presented at the preliminary hearing
      held in the case on March 19, 2003, as reflected in the transcripts
      thereof in arriving at a decision as to the guilt of said Defendants,
      Fredrich Norman Scott and Roberto Antonio Jackson.

R. Doc. 17, Ex. 8 at 19–21 (internal quotation marks omitted). Clearly, the

stipulation did not contemplate any testimony by Mr. Jackson. Accordingly, the

only question is whether Mr. Jackson’s decisions to waive his right to a jury trial

and enter into the stipulation were the product of ineffective assistance of

counsel. The record before the OCCA showed that the trial judge had questioned

Mr. Jackson and determined that his waiver and stipulation were free and

voluntary. Mr. Jackson has offered no evidence to the contrary. Therefore, no

reasonable jurist, in light of the deference required by AEDPA, could find the

district court’s denial of Mr. Jackson’s ineffective-assistance-of-counsel claims

debatable.

      Mr. Jackson also challenges his sentence on the ground that “the sentence

imposed was so disproportionate and excessive under the circumstances of this


                                         -9-
case that it should shock the cons[cience] of the court.” Aplt. Br. at 13 (full

capitalization omitted). On direct appeal the OCCA held that Mr. Jackson’s

sentences “were not excessive.” R. Doc. 17, Ex. 3 at 2. That ruling was not an

unreasonable application of clearly established federal law as established by the

Supreme Court. In United States v. Angelos, 433 F.3d 738, 750 (10th Cir. 2006),

we observed:

              “The Eighth Amendment . . . contains a ‘narrow
      proportionality principle’ that ‘applies to noncapital sentences.’”
      Ewing v. California, 538 U.S. 11, 20 (2003) (quoting Harmelin v.
      Michigan, 501 U.S. 957, 996–97 (1991). Under this narrow
      proportionality principle, the Eighth Amendment “does not require
      strict proportionality between crime and sentence.” Id. at 23.
      “Rather, it forbids only extreme sentences that are ‘grossly
      disproportionate’ to the crime.” Id. (quoting Harmelin, 501 U.S. at
      1001 (Kennedy, J., concurring in part and concurring in the
      judgment)).

“[T]he gross disproportionality principle reserves a constitutional violation for

only the extraordinary case.” Lockyer v. Andrade, 538 U.S. 68, 76 (2003).

Mr. Jackson’s two concurrent 30-year sentences do not present an “extraordinary

case.” No reasonable jurist could debate that the OCCA’s affirmance of his

sentence was contrary to or an unreasonable application of clearly established

federal law.

      Finally, Mr. Jackson claims that he is “actually innocent of the two (2)

thirty (30) year sentences he received in the Oklahoma state court.” Aplt. Br. at

22 (full capitalization omitted). But he does not claim that he did not commit the


                                         -10-
charged acts. Rather, as we understand his rather obscure brief (viewed in light

of the statement of his actual-innocence claim in his state application for

postconviction relief), the claim is based on the following two contentions: (1)

that under Oklahoma law the marijuana charge should have been for only a

misdemeanor, and (2) that the trial court erred in overruling his motion to

suppress. Federal habeas relief is not available, however, for alleged violations

of state law. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). And for the reasons

explained above, Mr. Jackson was not entitled to habeas relief based on the

suppression ruling. Thus, reasonable jurists could not find debatable the district

court’s denial of relief on his “actual innocence” claim.

III.   CONCLUSION

       We DENY Mr. Jackson’s application for a COA and DISMISS this appeal.

We GRANT his motion to proceed in forma pauperis on appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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