                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 25, 2007
                   UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                  TENTH CIRCUIT                        Clerk of Court



 M ER CE R . B AR OC IO ,

       Petitioner - A ppellant,
                                                        No. 07-7025
 v.                                             (D.C. No. CIV-04-126-RAW )
                                                        (E.D. Okla.)
 R ON W A R D ,

       Respondent - Appellee.



                   O RD ER DEN YIN G A CER TIFIC ATE O F
                             APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M erce R. Barocio, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the district court’s denial of his § 2254 habeas

petition. In challenging his state court conviction, Barocio claims that evidence

used against him was obtained in violation of the Fourth Amendment, that the

prosecutor failed to perform a plea agreement, and that his counsel was

ineffective. W e D EN Y the application for a COA.

      On M ay 20, 1999, the Choctaw County Sheriff’s Office received

information that Barocio was making methamphetamine at the home of his aunt.

W hen officers approached the house, they smelled a strong chemical odor
associated with methamphetamine and observed Barocio running out the back

door. Barocio was apprehended, and a search of the home revealed a

methamphetamine laboratory. Officers found Barocio’s fingerprints on several

items in the laboratory. At Barocio’s trial, a witness testified that she had

purchased methamphetamine-production supplies with Barocio, and returned with

him to his aunt’s house to make the drugs. On November 6, 2001, Barocio was

found guilty of manufacturing methamphetamine in violation of Okla. Stat. tit. 63,

§ 2-401(F), and sentenced to 25 years’ imprisonment. On direct appeal, Barocio

challenged the admission of evidence from the search, claimed the prosecutor

failed to perform a plea agreement, and alleged cumulative error. After that

appeal was denied, Barocio sought post-conviction relief in state court, alleging

ineffective assistance of counsel and cumulative error. The district court denied

Barocio’s petition, and the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed. W hile his state petition was pending, Barocio filed the present habeas

petition in federal district court. Adopting the m agistrate judge’s

recom mendation, the district court dismissed his petition. He now seeks a COA

from this court to appeal that decision. 1

      A COA may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Barocio must show

      1
         Because the district court did not address the issue of a COA, it is deemed
denied. See 10th Cir. R. 22.1(C). Consequently, Barocio may not appeal the
district court’s decision absent a grant of a COA by this court.

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“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.

M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). M oreover, because

Barocio raised these claims in his state court proceedings, a grant of habeas may

only issue if those proceedings resulted in a decision that was “contrary to, or

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

“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).

      Barocio first asserts that his Fourth Amendment rights were violated when

evidence was introduced against him at trial that was obtained from an illegal

search of his aunt’s home. State prisoners are not entitled to federal habeas relief

for alleged violations of the Fourth Amendment exclusionary rule “where the

State has provided an opportunity for full and fair litigation of the Fourth

Amendment claim.” Stone v. Powell, 428 U.S. 465, 494 (1976). Barocio

challenged the admission of the evidence at a preliminary hearing, in two written

suppression motions, at trial, and again on direct appeal. The OCCA determined

that Barocio lacked standing to challenge the search. Barocio had ample

opportunities to litigate his claim in state court, and is not entitled to habeas relief

on this ground.




                                          -3-
      Next, Barocio claims that he made an oral agreement with an assistant

district attorney to identify certain individuals in exchange for dismissing his case

without prejudice or continuing it indefinitely. He contends that although he

named two drug traffickers, the district attorney’s office did not perform its end

of the bargain. After conducting a hearing on Barocio’s motion to enforce the

agreement, the trial court found that there was no agreement and, alternatively,

that Barocio had failed to show compliance with the alleged agreement. Barocio

has offered no evidence to call into question the trial court’s determination, and

on review of the record, we determine that the trial court’s conclusions were

reasonable. Accordingly, Barocio has failed to allege a ground upon which relief

can be granted.

      Barocio raises several claims regarding the quality of his representation,

specifically that: (1) Trial counsel was ineffective; (2) Trial counsel had a

conflict of interest; and (3) Appellate counsel was ineffective. His claims of

ineffective assistance of trial counsel and conflict of interest w ere first raised in

his application for post-conviction relief. Because Barocio failed to raise these

claims on direct appeal, the OCCA concluded that, under Oklahoma law, they

were waived. See Okla. Stat. tit. 22, § 1086. Claims that are procedurally

defaulted in state court are generally barred on habeas review. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991). However, when a state procedural rule

would bar a claim of ineffective assistance of trial counsel, we will only apply

                                          -4-
this bar if trial and appellate counsel were different, and the ineffectiveness claim

can be resolved on the trial record. English v. Cody, 146 F.3d 1257, 1264 (10th

Cir. 1998). In this case, Barocio had separate trial and appellate counsel, and

after careful review of the record, we conclude it is sufficient to resolve his claim.

Thus Barocio’s claims are barred, absent a showing of cause and actual prejudice

or a fundamental miscarriage of justice. See Coleman, 501 U .S. at 750. Because

Barocio has not met either standard, we determine that his claim of ineffective

assistance of trial counsel is barred.

      Barocio has also failed to establish an actual conflict of interest w ith

respect to his trial counsel. Because Barocio raised this claim for the first time on

collateral attack, he “must demonstrate that an actual conflict of interest adversely

affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348

(1980). “An actual conflict of interest exists only if counsel was forced to make

choices advancing interests to the detriment of his client.” W orkman v. M ullin,

342 F.3d 1100, 1107 (10th Cir. 2003) (quotation and alteration omitted).

Barocio’s claim amounts to an allegation that his counsel had some tangential

prior contact with his family members, and in no way establishes a present

conflict requiring counsel to choose between Barocio’s interests and another’s.

      In addition, Barocio claims that in his direct appeal, his appellate counsel

was ineffective in failing to raise the issue of the ineffectiveness of trial counsel.

Applying the test in Strickland v. W ashington, 466 U.S. 668, 687 (1984), the

                                         -5-
OCCA concluded that Barocio failed to show trial counsel’s deficiency.

Appellate counsel’s failure to raise an issue does not constitute ineffective

assistance if the issue itself is meritless. Hawkins v. Hannigan, 185 F.3d 1146,

1152 (10th Cir. 1999). W e agree with the OCCA, and determine that Barocio has

failed to demonstrate that appellate counsel was ineffective.

         Finally, Barocio asserts that the cumulative effect of all alleged errors

deprived him of his right to a fair trial. However, because he has failed to show

any error in his case, there is no cumulative error. See Castro v. W ard, 138 F.3d

810, 832 (10th C ir. 1998) (“C umulative error analysis applies where there are tw o

or more actual errors. It does not apply, however, to the cumulative effect of

non-errors.” (quotation and citation omitted)).

         Because Barocio has failed to make “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his application for a

C OA .


                                          Entered for the Court
                                          Elisabeth A . Shumaker, Clerk



                                          By:
                                                 Deputy Clerk




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