                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 9 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID M. KORDELSKI,

                Petitioner-Appellant,

    v.                                                    No. 03-6080
                                                    (D.C. No. 01-CV-487-L)
    LENORA JORDAN, * Warden, James                        (W.D. Okla.)
    Crabtree Correctional Center,

                Respondent-Appellee.


                            ORDER AND JUDGMENT           **




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
     Lenora Jordan was substituted as the proper respondent in the report and
recommendation entered by the magistrate judge on May 17, 2002.
**
      This order and judgment is not binding precedent, except under the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.
      In September 1998, petitioner-appellant David M. Kordelski was convicted

by an Oklahoma state court jury of committing the crimes of possession of a

controlled dangerous substance with intent to distribute after two felony

convictions, possession of a controlled dangerous substance without a tax stamp

after two felony convictions, and possession of drug paraphernalia. Petitioner

was sentenced to serve consecutive prison terms of forty years, five years, and

one year. The Oklahoma Court of Criminal Appeals (OCCA) affirmed

petitioner’s convictions and sentences on direct appeal. Pursuant to 28 U.S.C.

§ 2254, petitioner subsequently filed a petition for a writ of habeas corpus in the

United States District Court for the Western District of Oklahoma. The district

court denied the petition, and petitioner then filed the instant appeal in this court.

      Pursuant to 28 U.S.C. § 2253(c)(1)(A), we granted petitioner a certificate

of appealability (COA) with respect to two issues:

      1) Proposition II, “the state trial court denied Mr. Kordelski due
      process of law when it allowed the prosecutor to engage in
      misconduct by failing to provide exculpatory material as required by
      Brady v. Maryland , [373 U.S. 83 (1963)]” and

      2) Proposition IV, “Mr. Kordelski was denied due process when the
      state trial court failed to sustain a motion to quash and request for
      remand when the amended information [changed] the range of
      punishment [and] the amendment had not been furnished to defense
      counsel.”

Order filed October 20, 2003, at 1-2. We conclude that petitioner has failed to

establish that he is entitled to habeas relief based on either of these issues.

                                           -2-
Accordingly, we affirm the district court’s denial of habeas relief on the issues on

which we granted a COA, and we deny a COA on all of the other issues raised by

petitioner.

                                          I.

       On December 4, 1996, four police officers from the Oklahoma City Police

Department were dispatched to investigate a possible drug transaction that was

taking place in a motel parking lot. At the time, other police officers were

conducting surveillance of the parking lot, and they reported the possible drug

transaction after observing suspicious activity. The four dispatched officers

subsequently arrived at the parking lot in two unmarked police vehicles, with

Officers French and Michael riding in one of the vehicles and Officers Bennett

and Galyon riding in the other vehicle.

       At the time the four dispatched officers arrived at the parking lot, the

suspects in the possible drug transaction were leaving the parking lot in two

separate cars. Petitioner was one of the suspects, and he was driving one of the

cars, along with a woman passenger named Rhonda Jones. The other car was

being driven by a woman named Tina Duello, along with a passenger named

Donna Garth. The dispatched officers proceeded to pull over the car that

petitioner was driving, while the car being driven by Tina Duello was pulled over

by other officers.


                                          -3-
      According to his testimony at petitioner’s trial, as the car containing

petitioner and Jones was coming to a stop, Officer French “observed a black

object to fly out of the passenger side window of the car into the grass on the side

of the roadway.” Trial Tr., Vol. 2, at 121. Officer Michael also testified that he

“saw the driver, who was later identified as Mr. Kordelski, lean to his right and

[he] saw an object fly from the vehicle.” Id. at 182. Both Officers French and

Michael also testified, however, that they did not see petitioner throw the black

object out of the car. Id. at 155, 187-88.

      After the cars had come to a stop, Officer French retrieved the black object,

and he identified it at trial as being a “wallet-type object.” Id. at 121. Officer

French testified that he opened the wallet after he retrieved it, and he found that it

contained a tubular cannister, two envelopes, and two plastic baggies containing

white and tan powdery substances. Id. at 131-32. He also found that it contained

two spoons, two small knife-like objects, an empty film cannister, several empty

plastic baggies, and several syringes. Id. at 133-35. No additional drugs or

paraphernalia were found on the person of Mr. Kordelski or in the car, although

the officers found a small plastic set of scales in Jones’ purse. Id. at 148.

      The dispatched officers then transported petitioner and Jones to a local

police station, and petitioner was placed under arrest and Jones in investigative

detention. Id. at 137-38. Upon arriving at the station, Officer French conducted a


                                             -4-
field test on a sample from the powdery substances that were found in the wallet,

and the sample tested positive for a narcotic. Id. at 138. Officer French and

Officer Bennet then took petitioner into a small room, and they read him his

Miranda rights. Id. After reading petitioner his Miranda rights, the officers

inquired as to whether petitioner was willing to speak with them and whether he

would agree to sign a written waiver of his Miranda rights. Id. at 139-40.

According to the trial testimony of both Officer French and Officer Bennett,

although petitioner refused to sign a written waiver, he agreed to speak with them,

id. at 139-40, 203-04, and he told them that he had paid an individual named

“Donna” $350.00 on the previous night to purchase an unspecified amount of

methamphetamine, id. at 140, 205. Petitioner also admitted that he had gone to

the motel parking lot to pick up the methamphetamine that the officers found in

the wallet. Id. Petitioner insisted, however, that Jones did not know anything

about the methamphetamine. Id. at 141, 205. Petitioner was then taken into

custody on the charges referenced above. No charges were ever filed against

Jones or the occupants of the other vehicle.

      At petitioner’s trial, the prosecution called Officers French, Michael, and

Bennet as witnesses to testify regarding petitioner’s arrest and confession. The

prosecution also called Matthew Scott, a forensic chemist with the Oklahoma City




                                         -5-
Police Department. Scott testified that there were 7.2 grams of methamphetamine

in the powdery substances that were recovered from the wallet. Id., Vol. 3, at 22.

      Petitioner called only one witness in his defense, and that was Tina Duello,

the driver of the other car. At the time of her testimony, Duello was serving time

in an Oklahoma state prison on charges that were unrelated to this case, and the

jury was informed of that fact. Id. at 33-34. As to the events of December 4,

1996, Duello testified that, after she and Donna Garth arrived at the motel parking

lot, Rhonda Jones got out of the other vehicle and came over and got into the back

seat of their vehicle. Id. at 34-35. According to Duello, “[Jones] got in with a

black billfold and passed Donna some money and Donna passed her a little baggie

with some powder in it, white powder or something.” Id. at 35. Duello further

testified that petitioner never came over to the vehicle. Id. at 36.

      In addition to presenting the testimony of Duello, petitioner’s trial counsel

attempted throughout the trial and in his closing argument to cast doubt on the

veracity of the police officers’ testimony regarding petitioner’s confession. As

noted above, despite the testimony of Duello and petitioner’s counsel’s attempts

to challenge the confession testimony, the jury found petitioner guilty of the

crimes of possession of a controlled dangerous substance with intent to distribute

after two felony convictions, possession of a controlled dangerous substance




                                          -6-
without a tax stamp after two felony convictions, and possession of drug

paraphernalia .

                                              II.

       A. AEDPA Deference.

              The nature and extent of our review of [a state prisoner’s]
       conviction are dictated by the [Antiterrorism and Effective Death
       Penalty Act (AEDPA)]. Under 28 U.S.C. § 2254(d) (2000), federal
       habeas review of state convictions is limited when the state courts
       have adjudicated a claim on the merits. As to such claims, the
       federal courts can grant a writ of habeas only if the state adjudication
       of the claim (1) “resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly established Federal
       law, as determined by the Supreme Court of the United States,”
       § 2254(d)(1); or (2) “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,” § 2254(d)(2).

Cook v. McKune , 323 F.3d 825, 829 (10th Cir. 2003). This limitation on our

review is known as “AEDPA deference.”

       As explained below, the OCCA adjudicated the merits of the claims at issue

in this appeal. As a result, we must apply the AEDPA deference standards to

determine if petitioner is entitled to habeas relief. “In doing so, we review the

district court’s legal analysis of the state court decision de novo.”   Allen v.

Mullin , 368 F.3d 1220, 1234 (10th Cir. 2004).

       B. Alleged Brady Violations.

       Petitioner claims the prosecution violated his due process rights by failing

to produce exculpatory materials as required by Brady v. Maryland , 373 U.S. 83

                                              -7-
(1963). Before addressing petitioner’s        Brady claim, we admonish counsel for

petitioner for submitting a woefully deficient opening brief pertaining to this

claim. Specifically, in petitioner’s opening brief, counsel refers in conclusory

fashion to “key police reports” and “witnesses names,” but he failed to make any

effort to describe what police reports and witnesses he is referring to.          See Aplt.

Br. at 7-9. Counsel also failed to provide any substantive arguments explaining

why these materials are exculpatory and material under          Brady . Counsel’s brief

does not meet the standards for appellate briefing in this circuit,        see Fed. R. App.

P. 28(a)(9), and we warn counsel that he may be subject to sanctions in this court

if he submits a brief of such poor quality in any future appeals. We also note that

our assessment of this appeal has been hampered by the fact that petitioner’s

counsel failed to file a brief after we granted petitioner a COA and respondent

filed a brief in response to the COA order.

       Despite the failures of petitioner’s counsel, we have carefully reviewed the

record in this case, and, based on that review, it is evident that petitioner’s       Brady

claim has two components. First, petitioner claims that the prosecution violated

Brady by failing to produce police reports regarding interviews of Jones and

Duello that were conducted by the police on December 4, 1996 after Jones and

Duello were transported to the police station.       See Aplee. Supp. App. at 88-91.

Second, petitioner claims that the prosecution violated        Brady by failing to provide


                                              -8-
him with: (1) the names of the police officers who were involved in the initial

surveillance of the motel parking lot; (2) the names of the police officers who

were involved in the stop of the vehicle in which Duello and Garth were riding;

and (3) any police reports that were prepared by these other officers.

       Petitioner asserted both components of his      Brady claim in his direct appeal

to the OCCA. Id. at 71-72. Although the OCCA did not specifically address the

separate components of petitioner’s      Brady claim, the OCCA rejected petitioner’s

Brady claim on the merits, concluding that petitioner had “failed to show how the

absence of this evidence denied him a fair trial or affected his strategy.”     Id. at

20. Because they raise different issues relating to the application of 28 U.S.C.

§ 2254, we need to analyze the two components of petitioner’s          Brady claim

separately.

       1. Jones and Duello Interview Reports.

       As this court has previously recognized,

       Brady [, 373 U.S. at 87] provides that the State’s suppression of
       evidence favorable to an accused . . . violates due process where the
       evidence is material either to guilt or to punishment. . . . This is so
       irrespective of the prosecution’s good or bad faith.   See Brady ,
       373 U.S. at 87 . . . . Thus, to establish a  Brady violation, a habeas
       petitioner must show that (1) the prosecutor suppressed evidence;
       (2) the evidence was favorable to the defendant as exculpatory or
       impeachment evidence; and (3) the evidence was material. . . .
       Generally, 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.


                                             -9-
Knighton v. Mullin , 293 F.3d 1165, 1172 (10th Cir. 2002) (quotations omitted).

       We have also “assumed, without deciding, that the government’s disclosure

of favorable evidence to the defense at trial could violate   Brady .” Id. at 1173 n.2.

In such cases, the materiality requirement still applies, and the “materiality

question . . . is . . . whether there is a reasonable probability that the outcome of

[the trial] would have been different had the State disclosed [the] information

earlier.” Id. at 1172-73. “We make this determination in light of the record as a

whole,” and “[w]e ultimately measure the materiality of the belatedly disclosed

information collectively.”    Id. at 1173; see also United States v. Scarborough    ,

128 F.3d 1373, 1376 (10th Cir. 1997) (noting that, “[w]hile we strongly

disapprove of delayed disclosure of     Brady materials, that alone is not always

grounds for reversal. As long as ultimate disclosure is made before it is too late

for the defendant[] to make use of any benefits of the evidence, Due Process is

satisfied.”) (quotation omitted).

       In this case, the record establishes: (1) that the prosecution disclosed the

existence of the Jones and Duello interview reports during petitioner’s trial;

(2) that petitioner’s trial counsel relied on the Jones report to cross-examine

Officer Michael, the author of the report, during the prosecution’s case-in-chief;

and (3) that petitioner’s trial counsel was given an opportunity to review the

Duello report prior to conducting his redirect examination of Duello.      See Trial


                                            -10-
Tr., Vol. 2, at 88-91, 193-94, 196, 198-99; Vol. 3, at 52-53, 57-58. Thus, this is

not a situation where the alleged      Brady material was completely suppressed by the

prosecution. As a result, the materiality issue is “whether there is a reasonable

probability that the outcome of [the trial] would have been different had the State

disclosed this information earlier.”     Knighton , 293 F.3d at 1173.

       The magistrate judge concluded that petitioner had failed to make a

sufficient materiality showing with respect to either the Jones or the Duello

reports, and we agree with the magistrate judge’s analysis. First, the only

potentially exculpatory evidence in the Jones report is her statement that “she did

not see [petitioner] with the black leather Harley Davidson wallet earlier or at any

time.” Aplee. Supp. App. at 88. As the magistrate judge found, “Jones’

statement does not give rise to a reasonable probability of a different result.

Moreover, Petitioner does not offer any argument as to how disclosure at trial, as

opposed to during the discovery phases, prejudiced his case.” Aplt. App. at 8. In

addition, petitioner’s trial counsel questioned Officer Michael about Jones’

statement during his cross-examination of Officer Michael, and Officer Michael

confirmed that Jones made the statement.        See Trial Tr., Vol. 2, at 198-99.

Second, we have not been able to discern any exculpatory value with respect to




                                             -11-
the Duello report,   3
                         and we thus agree with the magistrate judge that “the evidence

contained in the [Duello] report does not satisfy the materiality requirement.”

Aplt. App. at 9. Accordingly, we conclude that the OCCA’s adjudication of

petitioner’s Brady claim pertaining to the Jones and Duello reports was not

contrary to or an unreasonable application of Supreme Court precedent.

       2. Identities of the Other Police Officers.

       The magistrate judge rejected the second component of petitioner’s      Brady

claim, concluding that petitioner had failed to show how the identities of the other

police officers were “either material, exculpatory or of impeachment value.”

Aplt. App. at 10. We agree with the magistrate judge’s analysis, and we also

conclude that petitioner waived the second component of his        Brady claim by

failing to request an evidentiary hearing in the district court proceedings.

       During petitioner’s trial, his trial counsel argued before the trial judge that

the other officers could confirm Duello’s trial testimony that it was Jones, and not

petitioner, who got into the Duello/Garth vehicle to purchase the drugs.      See Trial

Tr., Vol. 3, at 77, 127. Counsel also argued that the other officers could confirm



3
       To the contrary, the Duello report is inculpatory, as it states: (1) that the
police found a pound of red phosphorous (a material used to make
methamphetamine) in the Duello/Garth vehicle; (2) that Duello told the police
that she had purchased the red phosphorous; and (3) that Duello told the police
that she had initially intended to sell the red phosphorous to petitioner.   See
Aplee. Supp. App. at 90.

                                             -12-
that either Garth or Jones were working for the police at the time of petitioner’s

arrest. Id. , Vol. 1, at 17-18. Petitioner’s trial counsel had no evidence to support

these arguments, however, and there is likewise no supporting evidence in the

record before this court.

      Given the lack of supporting evidence, petitioner’s    Brady claim pertaining

to the identities of the other officers is based on pure speculation, as there is no

evidence in the record establishing who the other officers were or what they

would have testified to if they had been called as witnesses at petitioner’s trial. It

was petitioner’s burden to develop an evidentiary record in the district court to

support his Brady claim, and the only way to satisfy that burden was to request an

evidentiary hearing and make the showings required by 28 U.S.C. § 2254(e)(2).          4



Petitioner failed to request an evidentiary hearing during the district court




4
       Under § 2254(e)(2), if a district court determines that a state habeas
petitioner failed to develop the factual basis of a claim in the underlying
state-court proceedings, then the court must deny a request for an evidentiary
hearing unless the petitioner can establish that one of the two exceptions set forth
in § 2254(e)(2) applies.   See Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir.
1998). On the other hand, if the court determines that the petitioner diligently
sought to develop the factual basis underlying his habeas petition, but a state
court prevented him from doing so, then the petitioner “is entitled to receive an
evidentiary hearing so long as his allegations, if true and if not contravened by the
existing factual record, would entitle him to habeas relief.”   Id. In this case,
however, because petitioner did not request an evidentiary hearing, the district
court did not have an opportunity to apply § 2254(e)(2).

                                          -13-
proceedings, however, and we therefore conclude that he has waived the second

component of his Brady claim.

       C. Amended Information.

       The original information filed against petitioner stated that he was

previously convicted of two counts of possession of a controlled dangerous

substance in case No. CFR-87-4010.     See State R., at 3-4. This was a mistake,

and, prior to petitioner’s trial, the prosecution filed an amended information that

stated that one of the convictions in case No. CFR-87-4010 was for the crime of

possession of stolen property.   Id. at 41. Petitioner claims the prosecution failed

to provide him with notice of the amended information prior to his trial, and that

“the result of the last-minute amendment was to increase the minimum

punishment from four to twenty years.” Aplt. Br. at 9. In addition, petitioner

claims he “was never given an opportunity to enter a plea to th[e] amended

information.”   Id.

       Although the sufficiency of an information is primarily a question of state

law, Tapia v. Tansy , 926 F.2d 1554, 1560 (10th Cir. 1991), “[a] charging

instrument may violate the Sixth Amendment by failing to provide a defendant

with adequate notice of the nature and cause of the accusations filed against him,”

Johnson v. Gibson , 169 F.3d 1239, 1252 (10th Cir. 1999). Moreover, “[i]t is

axiomatic that a conviction upon a charge not made or upon a charge not tried


                                         -14-
constitutes a denial of due process.”   Jackson v. Virginia , 443 U.S. 307, 314

(1979).

       On direct appeal, the OCCA rejected petitioner’s challenge to the amended

information, concluding that “the amended information did not result in any

prejudice to [petitioner].” Aplee. Supp. App. at 57. The magistrate judge agreed

with the OCCA’s analysis, and she summarized the evidence in the record

pertaining to this issue as follows:

              At trial, Petitioner’s counsel objected to the Amended
       Information stating that a copy had not been provided to him. The
       record indicates the effect of the correction to the Amended
       Information was to change Petitioner’s sentence range from four
       years to life . . . to a range of twenty years to life . . . . Petitioner’s
       counsel claimed prejudice asserting that Petitioner had turned down a
       plea of fifteen years and that further plea negotiations would have
       been pursued had the correct minimum punishment been known.
       Tr. Vol. 3, 122-23.

              The state responded that the plea offer of fifteen years
       remained open to Petitioner immediately prior to trial during
       discussions with Petitioner’s counsel about the range of punishment
       as reflected in the Amended Information. Tr. Vol. 3, 124. Indeed, it
       was these discussions that led Petitioner’s counsel to become aware
       of the Amended Information. Id. at 124-25. The record reflects the
       plea offer was rejected even with knowledge of the increase in the
       minimum punishment resulting from the Amended Information.       Id.
       at 124.

Aplt. App. at 16.

       The district court determined that “[t]he Magistrate Judge properly found

that the record reflects that the plea offer was rejected by petitioner even with


                                           -15-
knowledge of the increase in the minimum punishment resulting from the

Amended Information.”     Id. at 26. We agree, and we quote the following

colloquy between the parties’ trial counsel to support the magistrate judge’s

analysis:

             Mr. Niemeyer [counsel for respondent]: As far as entering into
      other plea negotiations, I talked to Mr. Shaeffer Monday in the hall
      prior to trial, and told him that the offer of 15 would still be open.
      He told me his client would take nothing less than probation . . . .

             Mr. Shaeffer [counsel for petitioner]: Judge, let me add just
      one little bit in response to that. Mr. Niemeyer is correct in regards
      to our conversation. It was not until after that conversation when
      Mr. Niemeyer made the statement that my client was looking at not
      less than 20 years that caused me to go check out the court file . . . to
      see how he was coming up with that . . . .

Trial Tr., Vol. 3, at 124-25.

                                         III.

      For the foregoing reasons, we AFFIRM the district court’s denial of habeas

relief on the issues on which we granted a COA. We DENY a COA on all of the

other issues raised by petitioner.



                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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