                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
.                        UNITED STATES CO URT O F APPEALS
                                                                          May 3, 2007
                                      TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court


    D A V ID E. R OB ISO N ,

                    Petitioner-A ppellant,                 No. 06-7121
             v.                                    Eastern District of Oklahoma
    R ON W A R D ,                                 (D.C. No. CIV-03-578-RAW )

                    Respondent-Appellee.



                  OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


         David E. Robison, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because w e conclude that M r. Robison has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                        I. Background

         Law enforcement suspected M r. Robison of manufacturing

methamphetamine after Ron Ryals, a loss-prevention employee at the W al-M art in


         *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Okmulgee, Oklahoma, noticed him placing eight bottles of peroxide, several

gallons of acetone, and two cases of HEET gas treatment into his shopping cart on

April 21, 2000. M r. Ryals immediately notified Officer M ike Randol, a member

of the district attorney’s drug task force, of M r. Robison’s suspicious behavior.

Officer Randol arrived at the store several minutes after the phone call and

observed M r. Ryals purchasing various items commonly used in the production of

methamphetamine. After M r. Ryals left the store, Officer Randol followed his

brow n pickup truck to a G it-n-G o convenience store and watched with binoculars

as Robison exited the establishment with another three bottles of HEET gas

treatment. Officer Randol then followed M r. Robison to the residence of co-

defendant John M cClusky and observed him carry the items into the house.

      After several weeks of surveillance, Officer Randol obtained a search

warrant for the M cClusky home. The search on April 27, 2000, turned up various

accouterments of methamphetamine production, as well as several syringes

containing methamphetamine. Officers arrested M r. M cClusky and Tara W agner,

both residents of the house, for manufacturing methamphetamine. M r. Robison,

who arrived at the home at the time of the arrest, was later added as a co-

defendant.

      Prior to trial M r. Ryals realized that he knew M r. Robison but had not

recognized him at W al-M art due to his squalid appearance. At trial both M r.

Ryals and Officer Randol testified regarding M r. Robison’s W al-M art and Git-n-

                                         -2-
Go shopping activities. In addition to the testimony of Ryals and Randol, co-

defendants M cClaskey and W agner testified that M r. Robison often obtained the

precursor chemicals for methamphetamine production on their behalf. In return

for his services, M r. Robison received some of the product, which he used or

distributed. As a defense, M r. Robison claimed that Officer Randol either was

mistaken or lied about identifying M r. Robison as the W al-M art shopper. He also

claimed that while he sometimes purchased food items for M r. M cClaskey at W al-

M art, he had never purchased anything used to manufacture methamphetamine.

A jury convicted M r. Robison of endeavoring to manufacture methamphetamine

in violation of O kla. Stat. tit. 63, § 2-408 (1971).

      M r. Robison sets forth the following grounds for relief:

      1.     The indentification [sic] of M r. Robison by Ronnie R yals should
             have been suppressed because it was so tainted by suggestiveness and
             conduciveness to misidentification that [petitioner’s] due process
             rights were violated. . . .

      2.     The trial court committed plain and highly prejudicial error in failing
             sua sponte to instruct the jury on the extremely careful scrutiny
             required in considering the issue of eyewitness identifaction [sic]
             where misidentification was an essential part of M r. Robinson’s [sic]
             defense. . . .

      3.     The jury instructions w ere fatally defective because they failed to
             inform the jury of all of the elements of the crime. . . .

      4.     The prosecutor injected unfairness into the trial by presenting
             improper rebuttal testimony, arguing facts not in evidence, and
             asking the jury to penalize M r. Robison for exercising his
             constitutional right to a jury trial. . . .



                                           -3-
      5.     The jury should have been instructed that seven years imprisionment
             [sic], rather than twenty years imprisonment, was the minimum for
             the crime. . . .

      6.     Considering the entire record, M r. Robison’s lack of a prior record,
             and the sentence given to his more culpable co-defendant, the
             sentence imposed was excessive. . . .

      7.     Failure to move for suppression of the identification of M r. Robison
             by Ronnie Ryals, to request an instruction on eye witness testimony,
             and to object to an incomplete instruction of the elements of the
             offense charged constituted ineffective assistance of counsel. . . .

      8.     The trial errors cumulatively deprived M r. Robison of a fair trial and
             reliable verdict.

Appellant’s Br. 5-21.
                                   II. Discussion

      A habeas petitioner may appeal the denial of his 28 U.S.C. § 2254 motion

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA is appropriate “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In order to make such a showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . 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) (internal quotation marks omitted). Because reasonable jurists could

not differ regarding each of the eight issues raised by M r. Robison, we DENY his

request for C OA .



                                         -4-
      A.     Eyew itness Testimony (G round 1)

      M r. Robison challenges the admission of M r. Ryals’s eyewitness testimony

because M r. Ryals did not recognize the defendant at the time he observed him at

W al-M art, and only realized he knew the defendant after receiving the subpoena

for trial. At trial, M r. Ryals identified M r. Robison as the shopper he saw

purchasing methamphetamine precursors that day in April.

      A trial court’s admission of eyew itness identification violates a defendant’s

right to due process only when the procedure by which the witness identifies the

defendant “is so unnecessarily suggestive that it is ‘conducive to irreparable

mistaken identification.’” Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir.

1993) (quoting Kirby v. Illinois, 406 U.S. 682, 691 (1972)). For instance, courts

have found eyewitness-identification procedures unnecessarily suggestive when a

witness is asked to pick the suspect out of a lineup or photo array of individuals

with strikingly different characteristics. Id. If the court finds the procedure

unnecessarily suggestive, it then considers whether under the totality of the

circumstances the identification was reliable. Id. at 1489-90. The court considers

several factors to determine the reliability of eyewitness testimony, including the

witness’s ability to view the accused at the time of the crime, “the witness’ degree

of attention, the accuracy of his prior description of the criminal, the level of

certainty demonstrated by the witness at the confrontation, and the length of time




                                          -5-
between the crime and the confrontation.” Id. (quoting Neil v. Biggers, 409 U.S.

188, 199-200 (1972)).

      In this case, M r. Ryals realized that M r. Robison was the W al-M art shopper

after he saw M r. Robison’s name on a subpoena that neither contained Robison’s

picture nor identified him as the W al-M art shopper. This procedure was not

unnecessarily suggestive— indeed, it was not suggestive at all within the meaning

of our case law. Consequently, it did not violate M r. Robison’s constitutional

right to due process. Even if it were suggestive, M r. Ryals’s testimony was

reliable given the totality of the circumstances. Ryals observed M r. Robison

shopping for at least several minutes, during which time he closely followed M r.

Robison’s actions. Though Ryals did not identify M r. Robison until more than a

year after his observations, he expressed absolute certainty that M r. Robison was

the man he observed in W al-M art. Because the identification procedure was not

suggestive and M r. Ryals’s eyew itness testimony was reliable, the district court

did not err in admitting the testimony.

      B.     Jury Instructions (G rounds 2, 3, and 5)

      M r. Robison contends that the court should have issued sua sponte a

cautionary jury instruction regarding eyewitness testimony. He also claims that

the court should have instructed the jury that, in order to convict, it must find

both a specific intent to manufacture methamphetamine and an overt act in



                                          -6-
furtherance of that crime. Finally, he argues that the jury should have been

instructed that the minimum sentence for his offense was seven rather than twenty

years because the legislature changed the minimum sentence prior to his trial.

M r. Robison did not object to any of these instructions at trial. The Oklahoma

Court of Criminal Appeals (OCCA) upheld the instructions under plain error

review.

         A state court’s interpretation of a state statute “is a matter of state law

binding on this court.” Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir. 2005)

(internal quotations omitted). W e will not employ the writ of habeas corpus to set

aside a state conviction “on the basis of erroneous jury instructions unless the

errors had the effect of rendering the trial so fundamentally unfair as to cause a

denial of a fair trial in the constitutional sense.” Shaffer v. Stratton, 906 F.2d

506, 508 (10th Cir. 1990) (internal quotations omitted). W hen determining

whether a jury instruction has rendered a trial fundamentally unfair, the question

is not “whether the [challenged] instruction is undesirable, erroneous, or even

universally condemned, but whether the instruction so infected the trial that the

resulting conviction violates due process.” Nguyen v. Reynolds, 131 F.3d 1340,

1357 (10th Cir. 1997) (internal quotations omitted). H ere, Nguyen’s already high

bar is even higher, because the defendant failed to object to the instructions at

trial.




                                             -7-
      The OCCA determined that the jury instructions outlining the elements of

the offense and the sentencing requirements complied with state law . W e are

bound by the OCCA’s interpretation of the Oklahoma statute. Parker, 394 F.3d at

1319. M r. Robison has not met his burden to show that these instructions

rendered his trial constitutionally unfair.

      C.     Prosecutorial M isconduct (G round 4)

      M r. Robison claims that his trial was unfair because the prosecutor

presented improper rebuttal testimony and argued facts not in evidence. He does

not, however, point to any specific instances of such conduct.     He also claims

that the prosecutor made unfairly prejudicial remarks to jurors when he told them

that by asserting his right to a jury trial, M r. Robison was “thumbing his nose” at

them. R. vol. 2, Trial Tr. at 315. This behavior does not rise to the level of

prosecutorial misconduct. “[P]rosecutorial misconduct in a state court violates a

defendant’s right to a fair trial only if the prosecutor’s actions ‘so infected the

trial with unfairness as to make the resulting conviction a denial of due process.’”

Nguyen, 131 F.3d at 1358 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). W e will consider “the strength of the evidence against the defendant and

decide whether the prosecutor’s statements plausibly could have tipped the scales

in favor of the prosecution.” Cummings v. Evans, 161 F.3d 610, 618 (10th Cir.

1998). W e review the OCCA’s denial of this claim only for “unreasonable



                                          -8-
application of the standard.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir.

2006). In light of the powerful evidence against M r. Robison, it was reasonable

for the O CCA to rule that the prosecutor’s remarks did not render his trial unfair.

      D.     Sentencing Errors (G round 6)

      M r. Robison contends that his twenty-five year sentence is excessive

because this was his first felony conviction and because M r. M cClaskey, who

w as— according to M r. R obison— more culpable, received a lesser sentence. “[A ]

sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” United States v. Delacruz-Soto, 414 F.3d

1158, 1168 (10th Cir. 2005). M r. Robison’s tw enty-five year sentence fell within

the statutory range of twenty years to life. Any disparity between M r. Robison

and M r. M cClaskey’s sentence may be explained by M r. M cClaskey’s cooperation

with law enforcement. And we have explicitly held that disparate sentences do

not violate the Eighth Amendment when one defendant receives a sentence

reduction for cooperation with the government. United States v. Rackstraw, 7

F.3d 1476, 1482-83 (10th Cir. 1993).

      E.     Ineffective Assistance of Counsel (G round 7)

      M r. Robison claims ineffective assistance of counsel on three grounds: trial

counsel did not move to suppress M r. Ryals’s eyewitness testimony, did not

request a cautionary jury instruction regarding the eyewitness testimony, and did


                                         -9-
not object to the jury instruction that explained the elements necessary for

conviction. An ineffective assistance of counsel claim requires M r. Robison to

show that “counsel’s performance was deficient” and that “the deficient

performance prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668,

687 (1984).

      M r. Robison first contends that his counsel should have objected to the

admission of M r. Ryals’s eyewitness testimony. To prevail, he must show both

that trial counsel was deficient in failing to object to the eyewitness identification

and that but for counsel’s failure, the result at trial would have been different.

Snow v. Sirmons, 474 F.3d 693, 720-21 (10th Cir. 2007) (citing Strickland v.

Washington, 466 U.S. 668, 694 (1984)). In Snow, trial counsel did not object to

eyewitness testimony from two witnesses who had both previously failed to pick

the defendant out of a lineup. Id. at 721. Both the OCCA and the federal habeas

court determined that the failure to object to the admission of the testimony

constituted a trial strategy since counsel attempted to discredit the witnesses

through extensive cross-examination. In addition, the court in Snow expressed

doubt as to whether an objection to the testimony would have been successful. Id.

      Counsel’s failure in this case to object to the admission of M r. Ryals’s

testimony can be similarly interpreted as a trial strategy. M r. Robison’s counsel

cross-examined M r. Ryals regarding how he knew M r. Robison and how he came



                                          -10-
to identify him as the W al-M art shopper. And while the court in Snow expressed

uncertainty regarding whether the eyewitness testimony at issue there would have

been admitted over counsel’s objection, the record in this case makes clear that

M r. Robison’s chances of excluding Ryals’s testimony were slender. M r. Ryals

recognized M r. Robison without any suggestion from law enforcement and under

the totality of the circumstances test, his eyewitness identification was reliable.

Trial counsel was not deficient in failing to object to the admission of the

eyewitness testimony: that “failure” was a deliberate trial strategy and in any

event, the testimony was properly admitted.

      M r. Robison also claims ineffective assistance of counsel because his

attorney failed to request a cautionary jury instruction regarding eyewitness

testimony. M r. Robison cannot claim ineffective assistance on this ground

“unless the failure to request such an instruction represent[s] a ‘substantial

violation of [his] rights.’” Snow, 474 F.3d at 721 (quoting Snow v. State, 876

P.2d 291, 295 (Okla. Crim. App. 1994)). Such a violation occurs only when there

is a “very substantial likelihood of misidentification.” Id. (internal quotations

omitted). Though the court did not issue an instruction on eyewitness testimony

in particular, it did instruct the jury that to determine the credibility of w itness

testimony it may consider “the ability of the witness to remember and relate past

occurrences, the means of observation, and the opportunity of knowing the

matters about which the witness has testified.” R. vol. 2, doc. 13 at 66.

                                           -11-
Considering the witness credibility instruction, defense counsel’s ample

opportunity to discredit eyewitness testimony through cross-examination, and the

fact that the prosecution’s case did not rest solely on eyewitness testimony, no

additional cautionary instruction regarding eyewitness testimony was necessary.

See U nited States v. Thom a, 713 F.2d 604, 608 (10th Cir. 1983) (government’s

standard instructions sufficiently focused jurors’ attention on the issues critical

for conviction). Thus, counsel’s failure to request one did not violate M r.

Robison’s rights.

      Finally, M r. Robison claims ineffective assistance of counsel because his

attorney did not object to the jury instruction that outlined the elements of the

offense. The court instructed the jury that it must find that the state proved M r.

Robison, “First, knowingly/intentionally; [s]econd, endeavor[ed] to manufacture;

[t]hird, the controlled dangerous substance of M ethamphetamine.” R. vol. 2, doc.

13 at 43. It defined “endeavor” as “[a] systematic or continuous effort to attain

some goal.” Id. at 44. M r. Robison claims that “endeavor” and “attempt” are

equivalent w ords requiring the jury to find that he committed an overt act.

Further, M r. Robison argues that “knowingly/intentionally manufactured” did not

accurately describe the mental state required for conviction. The OCCA

disagreed, finding that the instructions properly informed the jury of the elem ents




                                         -12-
of endeavoring to manufacture methamphetamine. 1     Because the jury instruction

properly outlined the elements of the crime, counsel was not deficient in failing to

object to the instruction.

      F.       Cumulative Error (G round 8)

      Cumulative error analysis does not apply to the cumulative effect of non-

errors. M oore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). Because the

trial court committed no errors, there can be no cumulative error.

                                 III. Conclusion

      Accordingly, we D EN Y M r. Robison’s request for a COA and DISM ISS

this appeal.

                                                   Entered for the Court,


                                                   M ichael W . M cConnell
                                                   Circuit Judge




      1
         Since M r. Robison’s conviction, the OCCA has maintained that “there is
no requirement of an overt act to complete the crime” of endeavoring to
manufacture methamphetamine. Tidmore v. State, 95 P.3d 176, 179 (Okla. Crim.
App. 2004). At issue in Tidmore was a jury instruction identical to the one used
at M r. Robison’s trial. Id. at 178.

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