                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 16 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROY LEE DUNN,

                Petitioner-Appellant,

    v.                                                   No. 03-6237
                                                   (D.C. No. 01-CV-1228-T)
    H. N. SCOTT,                                         (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and             MARTEN , ** District
Judge.



         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.




*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      Petitioner-appellant Roy Lee Dunn appeals the district court’s denial of his

third petition for habeas corpus relief filed under 28 U.S.C. § 2254. Following a

jury trial, Mr. Dunn was convicted in Oklahoma district court of two counts of

first-degree murder. His convictions were affirmed on direct appeal.     Dunn v.

State , No. F-85-236 (Okla. Crim. App. Aug. 22, 1989) (unpublished).     1
                                                                             After

completing one set of state post-conviction proceedings and two sets of federal

habeas corpus proceedings, Mr. Dunn then filed an application for state post-

conviction relief, alleging for the first time that the State violated his due process

rights under Brady v. Maryland , 373 U.S. 83 (1963), by failing to disclose

material, exculpatory evidence. The state court held an evidentiary hearing and

denied relief. The Oklahoma Court of Criminal Appeals (OCCA) affirmed.               Dunn

v. State , No. PC 97-1207 (Okla. Crim. App. Mar. 26, 1998) (unpublished). This

court gave Mr. Dunn permission to file a third habeas corpus petition.       See

28 U.S.C. § 2244(b)(3)(C). He argued in that petition, as he continues to argue

on appeal, that the State’s failure to disclose exculpatory evidence deprived him



1
       Mr. Dunn was tried jointly with his brother Terry Dunn and his girlfriend
Eulatine Mitchell. All three were convicted of both murders. The Oklahoma
Court of Criminal Appeals reversed Ms. Mitchell’s convictions with instructions
to dismiss the charges against her and reversed Terry Dunn’s convictions and
remanded for a new trial. The prosecutor chose not to retry Terry Dunn. The
direct appeal opinion accurately and thoroughly sets forth the facts in this case,
see Dunn , No. F-85-236 at 1-4, 6, and we will not repeat them here.


                                           -2-
of his right to due process. The district court adopted the magistrate judge’s

recommendation to deny habeas relief. That court also denied a certificate of

appealability (COA).    See id. § 2253(c). This court, however, granted a COA.

We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the

denial of habeas relief.

                                            I.

       Before addressing the merits of this appeal, we consider the sufficiency of

the appendices. Mr. Dunn is represented by counsel. Counsel bears the

responsibility under the rules of this court to provide “an appendix sufficient for

considering and deciding the issues on appeal,” 10th Cir. R. 30.1(A)(1), including

a copy of the habeas petition,   see 10th Cir. R. 10.3(C)(1), and trial transcripts

where necessary to the court’s review, 10th Cir. R. 10.1(A)(1).     See Green v.

Johnson , 977 F.2d 1383, 1387 (10th Cir. 1992). Mr. Dunn’s appendix fails to

include a copy of his habeas petition, any of the pleadings before the district

court, any of his state-court filings, or a complete trial or evidentiary hearing

transcript.

       Normally, under such circumstances, we would affirm the district court

because the evidentiary record is insufficient to assess the appellant’s arguments.

See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000). Here, however, the State

provided the full transcripts and relevant state and district court filings, except for


                                            -3-
a copy of the habeas petition.   See 10th Cir. R. 30.2(A)(1) (permitting appellee to

file supplemental appendix including items omitted from appellant’s appendix).

In light of the State’s indication in its appellate brief that Mr. Dunn presents the

same issues on appeal that he presented in the district court, we proceed to

consider the merits of this appeal despite the fact that we do not have a copy of

the habeas petition before us for review. Nonetheless, we remind counsel of their

duty to follow the appellate rules.

                                           II.

       Mr. Dunn argues that the State violated his constitutional right to due

process under Brady by suppressing statements concerning (1) a clothing

description of the suspect that did not match the clothing worn by Mr. Dunn on

the day of the murders; (2) evidence of other suspects; (3) physical descriptions of

the suspect’s vehicle that did not match Mr. Dunn’s vehicle; and (4) evidence that

Mr. Dunn did not possess the murder weapon. Mr. Dunn contends that there is a

reasonable probability the result of the trial would have been different if this

evidence had been disclosed.

       To prove a Brady violation, a petitioner must establish that the State

suppressed favorable evidence, which is either exculpatory or impeaching, and

that the evidence is material.   Strickler v. Greene , 527 U.S. 263, 281-82 (1999).




                                           -4-
The OCCA held that the asserted undisclosed evidence was not exculpatory.

Dunn , No. PC 97-1207 at 5-6.

       Because Brady claims present mixed questions of law and fact,       see Engberg

v. Wyoming , 265 F.3d 1109, 1117 (10th Cir. 2001), Mr. Dunn is entitled to habeas

relief only if he can prove that the OCCA’s resolution of his     Brady claims “was

contrary to, or involved an unreasonable application of, clearly established”

Supreme Court precedent, 28 U.S.C. § 2254(d)(1).       2
                                                           We give deference to the

OCCA’s decision even though that court failed “to discuss . . . federal precedent.”

Cook v. McKune , 323 F.3d 825, 831 (10th Cir. 2003) (relying on        Early v. Packer ,

537 U.S. 3 (2002) (per curiam)).



2
        The OCCA’s decision is somewhat confusing. The OCCA first decided
that the undisclosed evidence was not exculpatory.        Dunn , No. PC 97-1207 at 5-6.
In discussing the four individual categories of evidence, the court later stated the
vehicle description and weapons evidence was not material.         Id. at 8, 9. From its
discussion of this evidence, however, it appears that the OCCA determined the
evidence was not exculpatory and only in the alternative determined it was not
material. Under those circumstances, we give deference to the OCCA’s decision.
If, however, the OCCA intended to decide only that the evidence in those two
categories was not material, we would review de novo, inasmuch as the OCCA
applied the wrong legal standard by failing to consider collectively the two
categories of evidence it considered for materiality review.      See Kyles v. Whitley ,
514 U.S. 419, 436-37 (1995) (discussing need to determine materiality by
considering suppressed items of evidence collectively);      Cargle v. Mullin ,
317 F.3d 1196, 1202 (10th Cir. 2003) (discussing de novo review standard when
state court applied wrong legal standard). Regardless of whether we apply a
deferential or a de novo standard, we would affirm the denial of habeas corpus
relief.


                                            -5-
       A. Did the State Suppress the Evidence?

       At the state evidentiary hearing, the State admitted it had failed to disclose

the various statements. Aplee. Supp. App., vol. 3 at 668. We assume, with one

exception, that the State suppressed the statements. The one exception concerns

Stanley Reece’s statement about possible suspects. Mr. Reece indicated that

Ms. Mitchell “ha[d] been spreading the word” that he and three others had

committed the murders. Aplt. App. at 97. The OCCA determined that because

Mr. Reece’s information came from a co-defendant and because all defense

counsel worked together, Mr. Dunn would have been aware of this information.

Dunn , No. PC 97-1207 at 6-7. The State cannot be said to have suppressed

evidence if it was known by, or available to, the defendant before trial.     See

McGregor v. Gibson , 219 F.3d 1245, 1253-54 (10th Cir. 2000),          overruled on

other grounds , 248 F.3d 946 (10th Cir. 2001) (en banc). Thus, the OCCA’s

determination was not contrary to, or an unreasonable application of, Supreme

Court precedent.   See 28 U.S.C. § 2254(d)(1).

       B. Was the Evidence Favorable?

              1. Clothing Description

       Mr. Dunn argues the trial would have turned out differently if the State had

disclosed Jeff Cargill’s statement describing clothing the suspect wore on the day

of the murder. Mr. Cargill indicated in his statement that he “believed” the black


                                             -6-
man he saw entering a vehicle, which he described at trial as similar to

Mr. Dunn’s vehicle, at the victim’s house in the late afternoon on the day of the

murders was wearing blue jeans, but “he could not be certain,” and if that man

was wearing a jacket he “believed” it was dark colored. Aplt. App. at 89. At

trial, although Mr. Cargill testified that he saw a black man getting into the

vehicle, he did not testify about the man’s clothing. Aplee. Supp. App., vol. 1 at

293-94. And at no time did he identify the man. Also, Mr. Dunn faults the State

for failing to disclose the statement of Walter Hagler that Mr. Dunn was wearing

dark leather pants on the afternoon of the murder, Aplt. App. at 91, and the

statement of Stanley Reece that Mr. Dunn was wearing leather pants and a leather

jacket on the morning of the murders,    id. at 93. Mr. Dunn asserts that if he had

been aware of all of this information, he would have cross-examined Mr. Cargill

about his statement and presented the testimony of Mr. Hagler and Mr. Reece.

      The OCCA determined this evidence was not exculpatory, because no one

had identified Mr. Dunn as being at the crime scene.    Dunn , No. PC 97-1207 at 6.

Given Mr. Cargill’s lack of certainty about the suspect’s dress and the fact that no

witness identified Mr. Dunn as the suspect, we conclude the OCCA’s

determination that the evidence was not favorable was not contrary to, or an

unreasonable application of, Supreme Court precedent.      See 28 U.S.C.

§ 2254(d)(1).


                                           -7-
              2. Other Possible Suspects

       Mr. Dunn argues the State suppressed two statements suggesting there were

other possible suspects. Jeri Fine’s statement indicated that her mother had heard

from one of the mother’s employees that a man named “Mike,” who was very high

on drugs at the time, had told the employee that he knew too much about the

murders. Aplt. App. at 94-95. The statement also indicated that Ms. Fine had

spoken to another person, who told Ms. Fine that the Dunn brothers had

committed the murders so there would be no witnesses to the fact that they had

stolen from one victim.   Id. at 95. The statement of James Moss, a drug customer

of that victim, indicated that he had heard from his boss’s son, who had heard

from someone else, that two black males had confronted this victim in a

restaurant on the day of the murders.   Id. at 85-86. Mr. Dunn contends that if he

had had this information before trial, he could have bolstered his defense that one

or more of one victim’s drug customers had committed the murders.

       The OCCA decided these statements were not exculpatory, because

Ms. Fine also mentioned Mr. Dunn as a suspect and Mr. Dunn and his brother

could have been the black men referred to by Mr. Moss.      Dunn , No. PC 97-1207

at 6-7. Also, the court again found, as it had on direct appeal, that the trial court

had allowed defense counsel wide latitude to cross-examine witnesses about one

victim’s drug connections and the jury heard evidence about the drug connections.


                                           -8-
Id. at 7; see also Dunn , No. F-85-236 at 11-12. The OCCA therefore concluded

the alleged exculpatory evidence merely indicated “additional people who may

have killed the victims.”   Dunn , No. PC 97-1207 at 7.

       Neither of these statements provided specific information concerning other

possible suspects. Ms. Fine apparently did not know what “Mike” knew about the

murders. There is no evidence of who “Mike” is or that he even was or should

have been a suspect. Nor is there evidence identifying the two black men in

Mr. Moss’s statement. Also, neither statement supported Mr. Dunn’s defense that

one of the victim’s drug customers committed the murders. Mr. Dunn has failed

to establish how disclosure of these statements would have helped his defense.

We therefore conclude the OCCA’s determination that the evidence was not

exculpatory was not contrary to, or an unreasonable application of, Supreme

Court precedent.   See 28 U.S.C. § 2254(d)(1).

              3. Vehicle Description

       Mr. Dunn argues the State suppressed statements of Mr. Cargill and Chris

Henderson showing that the description of the suspect’s car did not match

Mr. Dunn’s car. Mr. Dunn contends he could have used these statements to

impeach their trial testimony.

       Mr. Dunn’s car was a maroon Cadillac Seville with a front-mount antenna

and vertical taillights. In his statements, Mr. Henderson described the suspect’s


                                          -9-
vehicle as a maroon, large, full-size possible Buick with possibly a rear-mount

antenna and horizontal taillights and a white roof or with snow or glare on the

roof. Aplt. App. at 99, 100-01. But he was only positive that the car was a

full-size, late 1970’s model and that its color was maroon.       Id. at 99. Upon seeing

photographs of Mr. Dunn’s car, Mr. Henderson stated that the car in the

photographs was the same size and color as the suspect’s car and it could have

been the car he saw in front of the victim’s house.     Id. at 101. At trial, Mr.

Henderson testified that the suspect’s car was a big, maroon, luxury vehicle, but

he did not recall any other characteristics. Aplee. Supp. App., vol. 1 at 274-75.

Upon seeing a photograph of Mr. Dunn’s car, he was only certain that the car in

the photograph was the same size and color as the one he had observed parked at

the victim’s home.    Id. at 276.

       Mr. Cargill’s statement indicated the suspect’s vehicle may have been a

Chevrolet Impala, but he was not certain. Aplt. App. at 90. He knew it was

four-door, maroon, and full size.    Id. Both at trial and at the time of his

statement, after seeing photographs of Mr. Dunn’s car, he stated the car in the

photographs could have been the one he saw because the color, body style, and

size were similar.   Id. ; Aplee. Supp. App., vol. 1 at 291-92.

       In analyzing this evidence, the OCCA found there had been no definite

description of the vehicle seen in front of the victim’s house, and, at most, this


                                           -10-
evidence only pointed out further inconsistencies in the witnesses’s vague

descriptions, none of which definitively identified Mr. Dunn’s car.    Dunn ,

No. PC 97-1207 at 8. The trial witnesses and statements provided differing

descriptions of the vehicle, but all descriptions consistently identified the

vehicle’s size and general color. And those size and color descriptions were

consistent with the vehicle Mr. Dunn had been driving. Mr. Dunn has failed to

show how Mr. Cargill’s or Mr. Henderson’s statements would have impeached

their trial testimony. Accordingly, we conclude the OCCA’s determination that

the evidence was not exculpatory was not contrary to, or an unreasonable

application of, Supreme Court precedent.      See 28 U.S.C. § 2254(d)(1).

              4. Weapons Evidence

        Mr. Dunn argues the State suppressed the statement of his wife, Emma

Dunn, that she had observed Mr. Dunn in possession of a “big, old, rusty gun”

two weeks before she gave her statement. Aplt. App. at 87. In comparison, at

trial, she testified that on one occasion she saw Mr. Dunn in possession of a

“small derringer.” Aplee. Supp. App., vol. 2 at 303. If he been aware of her

statement, Mr. Dunn claims he could have more thoroughly impeached Mrs. Dunn

at trial.

        In a second statement, however, Mrs. Dunn related that she had seen Mr.

Dunn in possession of both an “old and rusty” “0.38 caliber western-style


                                           -11-
handgun” and a “small derringer.” Aplee. Supp. App., vol. 4 at 1158. This

second statement was consistent with both Mrs. Dunn’s trial testimony and her

first statement. Accordingly, we conclude the OCCA’s determination that the

evidence was not exculpatory,    Dunn , No. PC 97-1207 at 9, was not contrary to, or

an unreasonable application of, Supreme Court precedent.      See 28 U.S.C.

§ 2254(d)(1).

       Even if the undisclosed statements were exculpatory, they were not

material. “Evidence is material if there is a reasonable probability that, had the

State disclosed the evidence, the result of the trial would have been different.

[Strickler, 527 U.S.] at 280. . . . In assessing materiality, this court reviews the

undisclosed evidence in light of the record as a whole.”    Rojem v. Gibson ,

245 F.3d 1130, 1139 (10th Cir. 2001).

       Mr. Dunn had been at the residence of one of the victims the prior evening

when a $50 bill of his, which had been used to snort cocaine, had turned up

missing. Mr. Dunn told the victim he would be back the following afternoon to

talk to him about the missing money. A vehicle of the size and color agreed upon

by all witnesses was observed parked in front of that victim’s home in the late

afternoon of the following day. A bullet found in the other victim matched a

bullet found on the ground in front of Mr. Dunn’s house after a domestic

disturbance. Mr. Dunn had access to the gun firing both bullets.


                                           -12-
       While the trial evidence of Mr. Dunn’s guilt was wholly circumstantial,

Mrs. Dunn’s statements would not have resulted in a stronger case for Mr. Dunn

or a weaker one for the State. Her testimony would not have been impeached by

the disclosure of her statements. Thus, disclosure of the statements in light of the

entire record would not have affected the outcome of the trial such that our

confidence in the jury’s guilty verdict is undermined.      Cf. Smith v. Sec’y of N.M.

Dep’t of Corr. , 50 F.3d 801, 830 (10th Cir. 1995) (deciding disclosure of

evidence would have affected outcome of retrial so as to undermine confidence in

verdict). Nor can we say that the trial was unfair.      See Brady , 373 U.S. at 87.

The OCCA’s materiality decision therefore was not an unreasonable application

of Supreme Court precedent.      See 28 U.S.C. § 2254(d); Moore v. Gibson ,

195 F.3d 1152, 1165 (10th Cir. 1999) (discussing materiality standards).

       The judgment of the district court is AFFIRMED.



                                                         Entered for the Court



                                                         Bobby R. Baldock
                                                         Circuit Judge




                                            -13-
