                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     February 22, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 LELYN EDW AR D B OD INE,

                 Petitioner-A ppellant,                   No. 06-6264
          v.                                            (W .D. of Okla.)
 THE W ARDEN OF JOSEPH HA RP                      (D.C. No. CV-05-1164-M )
 CORRECTIONA L CENTER,

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **




      Lelyn Bodine, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability (COA) to challenge the district court’s denial of his

petition of a writ of habeas corpus under 28 U.S.C. § 2254. W e reject Bodine’s

request for a COA.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   I. Background

      An Oklahoma jury convicted Bodine of eleven counts of Lew d Acts with a

M inor, and recommended he serve the maximum 20-year prison term on each

count. At sentencing, the court ordered Bodine to serve all eleven 20-year terms

consecutively. On direct appeal, Bodine asserted nine grounds for relief,

including the constitutional claims he now brings before this court. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed Bodine’s conviction and

sentence on direct appeal. Bodine does not appear to have sought post-conviction

relief in the Oklahoma state courts. 1

      Bodine filed a petition for a w rit of habeas corpus in the district court

alleging the following claims of error: (1) his direct appeal was fundamentally

unfair; (2) trial counsel was ineffective for failing to question the prosecutor

about the prosecutor’s interviews with the victim; (3) deprivation of due process

based on two instances of prosecutorial misconduct— making a false statement

before the jury and concealing potentially exculpatory evidence; and (4) the trial



      1
        The exhaustion requirements of 28 U.S.C. § 2254 do not require Bodine to
seek post-conviction relief in state court prior to filing his federal habeas petition,
provided the state court had the opportunity to rule on the substance of his federal
claim. “[O]nce the state courts have ruled upon a claim, it is not necessary for a
petitioner ‘to ask the state for collateral relief, based upon the same evidence and
issues already decided by direct review.’” Castille v. Peoples, 489 U.S. 346, 350
(1989) (quoting Brown v. Allen, 344 U.S. 443, 448–49 n.3 (1953)).




                                          -2-
court impermissibly had an ex parte communication with the jury after it rendered

the verdict but prior to sentencing.

      In its 16-page Report and Recommendation, the magistrate judge carefully

responded to each of Bodine’s claims and concluded none could satisfy the

standard of § 2254, which permits a federal court to issue a writ of habeas corpus

only if the state adjudication resulted in a decision that was “contrary to, or

involved an unreasonable application of clearly established Federal law,” or was

“based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1)–(2).

                                       II. Analysis

      This court may issue a CO A if a petitioner “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v.

M cDaniel, 529 U.S. 473, 484 (2000). W here, as here, the district court has

rejected the constitutional claim on the merits, the petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Id.

Claim 1: Direct Appeal was a “M ask of Injustice”

      In Claim 1, Bodine launches a blanket attack on the manner in which the

OCCA reviewed his direct appeal, calling the w hole process “inadequate[],

ineffective[], and unmeaningful.” Pet. Brief in Support of Habeas Petition at 5.

W ithout relevant detail, however, his generalized screed does not state a

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cognizable claim for federal habeas relief, which requires a showing that

petitioner is being held “in custody in violation of the Constitution or laws or

treaties of the United States.” Knox v. Wyoming Dep’t of Corrections, 34 F.3d

964, 966 (10th Cir. 1994) (citing 28 U.S.C. § 2254(a)).

Claim 2: Ineffective Assistance of Counsel

      Bodine next claims ineffective assistance of counsel on the grounds that

defense counsel failed to respond to the prosecutor’s closing argument in which

she noted two interview s w ith the seven-year old victim in the case. According to

Bodine, defense counsel should have “immediately called the prosecution as a

witness en camera to delve into her interviews with [the victim], as well as

discover any and all video/audio recordings and a list of questions asked and

responses given.” Pet. Brief in Support of COA at 22. Bodine’s theory is that the

prior interview s w ere likely to have tainted the child’s testimony at trial.

      The OCCA reviewed this and other allegations of ineffective assistance of

trial counsel under the standard established by Strickland v. Washington, 466 U.S.

668 (1984). To prevail under Strickland, Bodine was required to show both

cause— that counsel’s performance fell below an objective standard of

reasonableness— and prejudice— that but for the counsel’s error, the outcome of

the trial w ould have been different. The OCCA concluded that Bodine failed to

make either showing.




                                           -4-
      W e agree with the magistrate judge that the OCCA’s denial of relief on

Bodine’s ineffective assistance claim neither resulted in a decision contrary to

clearly established Federal law , nor was it based on an unreasonable

determination of the facts in light of the evidence presented. No evidence was

presented that the victim’s testimony was tainted by the prosecutor and the

defense counsel’s alleged failure to probe more deeply into the alleged interview s

does not rise to the level of objective unreasonableness as a trial tactic.

Particularly if counsel felt it had nothing to gain from calling the prosecutor as “a

witness en camera,” w e cannot say counsel’s conduct was objectively

unreasonable.

Claim 3: Prosecutorial M isconduct

      Bodine’s third claim is that the prosecutor’s misconduct in two instances

deprived him of the right to a fair trial in violation of due process. First, he

alleges the prosecution made a false statement to the jury which in effect “call[ed]

defense counsel a liar.” Pet. Brief in Support of Habeas Petition at 27. The

particular exchange Bodine refers to is laid out in full in the magistrate judge’s

Report. The prosecutor was responding to defense counsel’s cross-examination of

the forensic interviewer who mentioned a police report authored by Officer Kathy

Dodd, who had previously interviewed the victim in the case:

      DEFENSE COUNSEL: Is that the one where [Officer Dodd] terminated
      the interview with [the victim] because [the victim] was using more
      advanced terminology, that she felt like somebody like herself might —

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      PROSECUTOR: Your Honor, for heaven’s sake, that is absolutely false.
      I cannot imagine — may we approach?

      THE COURT: W ait, wait, wait. Settle down. Come up.

T. Transcript at 168–69.

      Outside the hearing of the jury, the prosecutor told the judge defense

counsel was putting false information before the jury because O fficer Dodd’s

report did not include the statements defense counsel alleged. Yet, a portion of

Officer Dodd’s report did state:

      The [victim] was repeating words the [reporting person] would use or
      an adult would use in reference to the crime, so I asked no further
      questions so detectives could do an interview of the [victim].

Pet. App., Crime Report at 75–76. W hile the trial court ultimately sustained the

prosecutor’s objection, it did tell defense counsel it would consider admitting

Officer Dodd’s report into evidence if counsel laid the proper foundation. T.

Transcript at 170. Defense counsel made no further attempt to introduce Officer

Dodd’s report into evidence, which led the OCCA to determine that “further

consideration of the error is waived.” OCCA Op. at 6.

      For prosecutorial misconduct to rise to the level entitling petitioner to

federal habeas relief, it must either have violated a specific constitutional right, or

“so infected the trial with unfairness as to make the resulting conviction a denial

of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The

magistrate judge concluded that the limited statement of the prosecutor within

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earshot of the jury, namely her claim that defense counsel’s inference regarding

Officer Dodd’s report was “absolutely false,” did not result in violation of due

process per the standard set forth in Donnelly. W e agree. It is implausible that

the jury would have been particularly moved by this brief statement in a lengthy

trial full of emotionally charged issues and testimony. M oreover, we agree with

the OCCA that defense counsel waived further consideration of the issue in light

of his failure to seek admission of Officer Dodd’s report. 2

      Bodine further alleges the prosecutor’s failure to provide potentially

exculpatory evidence to defense counsel impermissibly “infected the trial w ith

unfairness” in violation of Donnelly. Bodine refers to the fact that the victim’s

biological mother and her fiancé w ere charged with child abuse of the victim’s

brother. He claims the prosecution was obligated to provide the defense with

notice of these charges in keeping with Brady v. M aryland, 373 U.S. 83 (1963),

which held that the State’s suppression of “evidence favorable to an accused . . .

violates due process where the evidence is m aterial either to guilt or to

punishment.” Id. at 87 (emphasis added).



      2
         Bodine further argues this failure was an additional basis for his
ineffective assistance of counsel claim, but we can neither second-guess defense
counsel’s trial strategy nor can we conclude that the outcome of trial would have
been different had defense counsel sought admission of Officer D odd’s report.
M oreover, the OCCA fully addressed all of Bodine’s claims of ineffective
assistance under Strickland and we cannot say the district court’s endorsement of
the OCCA analysis would be debatable among jurists of reason.


                                          -7-
      W e have held that in order to establish a Brady violation for purposes of

federal habeas relief, a petitioner must show: (1) the prosecutor suppressed the

evidence; (2) the evidence was favorable to the defendant as exculpatory or

impeachment evidence; and (3) the evidence was material. Knighton v. M ullin,

293 F.3d 1165, 1172 (10th Cir. 2002). The magistrate judge was careful to note

that, while defense counsel was perhaps not aware that criminal charges had been

filed against the victim’s mother, he was aware of the factual circumstances

giving rise to the charges and had an opportunity to examine the mother as to

those circumstances. Specifically, it became known at trial that social services

removed the victim and her brother from their mother’s care after the victim’s

brother suffered a broken leg. W hile Bodine arguably satisfies the first two

prongs of Brady, we agree with the magistrate judge that the evidence did not

satisfy the materiality requirement of prong three: “Such evidence is material if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Strickler v.

Greene, 527 U.S. 263, 280 (1999).

      Given that the jury was apprised of the relevant facts underlying the

charges against the victim’s mother and her fiancé, we cannot see how the

outcome of the trial would have been different if additional evidence of the

formal charges against them had been introduced.




                                         -8-
Claim 4: Judicial M isconduct

      As his final claim for relief, Bodine argues that the judge engaged in an

impermissible ex parte communication with some of the jurors after the verdict

was entered but before the court issued its sentence.

      By way of background, in Oklahoma, the jury is allowed to recommend a

sentence after the liability phase of trial. 22 Okla. St. Ann. § 926.1. Here, the

jury found Bodine guilty on eleven counts of child molestation “in less than an

hour” and recommended a sentence of the maximum twenty years. Pet. App. at

186. Bodine claims the trial court impermissibly communicated with the jury

prior to sentencing. As evidence of this communication, Bodine quotes the

following statement the prosecutor made at the sentencing hearing:

      PROSECUTOR: This jury recom m ended 20 years which is all they
      could do on every count. And they told this Court afterwards that they
      meant 220 years when they said it.

Pet. A pp. at 187.

      In support of his contention that the communication violated due process,

Bodine cites the Supreme Court’s decision in Rushen v. Spain, 464 U.S. 114

(1983). In Rushen, the Supreme Court reviewed allegations of wrongful

comm unications between a jury and judge during the liability phase of a 17-

month trial. W hile acknowledging that the accused has a “right to personal

presence at all critical stages of the trial and the right to counsel,” 464 U.S. at




                                          -9-
117, the Court concluded that any communication between the trial judge and a

juror was harmless: 3

      This is not to say that ex parte communications between judge and juror
      are never of serious concern or that a federal court on habeas may never
      o v e rtu rn a c o n v ic tio n f o r p re ju d ic e re s u l t i n g fro m s u c h
      communications. W hen an ex parte communication relates to some
      aspect of the trial, the trial judge generally should disclose the
      communication to counsel for all parties.

464 U.S. at 119–120.

      W e have reviewed Rushen type claims several times before. In those cases,

we observed that “if the ex parte communication between a juror and judge is

improper, we will presume prejudice unless the prosecution can rebut the

presumption by showing that the communication did not prejudice the substantial

rights of the defendant.” Smallwood v. Gibson, 191 F.3d 1257, 1279 (10th Cir.

1999). See also United States v. Carter, 973 F.2d 1509, 1515 (10th Cir. 1992);

United States v. M cDonald, 933 F.2d 1519, 1524 (10th Cir. 1991). W e have not

described in detail what constitutes an “improper” communication between judge

and jury. But we have, however, identified several specific fact situations where

such communication may be deemed proper. See, e.g., Smallwood, 191 F.3d at

      3
        In Rushen, during the course of trial the court engaged in an ex parte
comm unication with a juror about the juror’s recently recovered memory of the
murder of an acquaintance when she was a child. The defendant in that case was
convicted. On appeal, the federal court of appeals overturned the conviction
based on its conclusion that an ex parte communication between judge and jury
can never amount to harmless error. The Supreme Court disagreed, concluding
such communications could be reviewed for harmless error. Rushen, 464 U.S. at
118–19.

                                             -10-
1279–80 (concluding that “there is nothing inherently disturbing or prejudicial in

a juror submitting a question or request to the court,” particularly where both

sides were apprised of the content of the note and the judge did not respond). 4

      The magistrate judge therefore analyzed Bodine’s judicial misconduct

claim by asking whether the ex parte communication took place during a “critical

stage” at trial. W hile noting the Supreme Court has held that sentencing

proceedings constitute such a critical stage, M empa v. Rhay, 389 U.S. 128,

133–34 (1967), the magistrate judge nevertheless concluded the communication at

issue in Bodine’s case did not occur at a critical stage:

      In this case, the trial court’s challenged ex parte communication with
      the jury took place after Petitioner was convicted, after the jury had
      recommended the maximum sentence for each offense, after the jury
      had completed its duties, and well before Petitioner’s sentence was
      imposed.

M ag. J. R& R at 14.




      4
         W hether an ex parte communication resulted in prejudice is typically a
question of historical fact entitled to deference on review. See, e.g., Crease v.
M cKune, 189 F.3d 1188, 1193–94 (10th Cir. 1999) (quoting Rushen, 464 U.S. at
120). However, the O CCA in this case flatly denied the existence of record
evidence suggesting an ex parte communication: “[W]e find nothing in the
appellate record to support [Bodine’s] argument the prosecutor met ex parte with
the judge and jurors after the return of the verdict.” OCCA Op. at 6. The
magistrate judge found this statement “puzzling because it appears that a copy of
the transcript of the sentencing proceeding was part of the record before the
OCCA.” M ag. J. R& R at 12.

                                         -11-
      W e agree. It is obvious the communication— even if ex parte— occurred

after the jury had concluded its deliberations and had been discharged. 5 And as is

frequently the case in discharging a jury there may be some reference to the case.

But the trial judge has the ultimate responsibility to impose the sentence, and the

sentencing transcript abundantly makes clear that the judge undertook his

sentencing obligation independently and on the record. 6 In fact, the court stated

at sentencing:

      THE COURT: There are cases that this Court has heard that shock this
      conscious [sic]. But the violence one does to a child and the violence
      that that child will have to live with for the rest of her life, as I have
      said on more than one occasion, we can only hope that she can work
      through it. But she will be in prison for the rest of her life because of
      your actions.

      M s. Pope is correct, the jury found guilt on your part on each and
      everyone [sic] of these counts in a very short time. They had very little
      – they had, I can say, no doubt as to the evidence presented by the State
      of Oklahoma in this case. For those reasons all of these cases will be
      ordered to serve consecutively.

Pet. A pp. at 188.

      In sum, even if the judge had an improper ex parte communication with the

jury, any error was harmless. Accordingly, Bodine cannot show that the OCCA



      5
        Although the prosecutor mentioned the communication between the trial
court and the jury, nothing suggests that the defense counsel actually was not
present. M oreover, defense counsel made no objection at sentencing on the
grounds that the judge was improperly influenced by the jury.
      6
        Under Oklahoma law, the sentencing judge determines whether sentences
are concurrent or consecutive. 22 Okla. Stat. Ann. § 976.

                                         -12-
unreasonably applied Supreme Court law. W e thus agree with the district court

that a COA is not warranted on this issue.

                                 III. Conclusion

      For the reasons set forth above we deny Bodine’s request for a COA.

                                      Entered for the Court

                                      Timothy M . Tymkovich
                                      Circuit Judge




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