                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            FEB 17 2005
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 KENNETH WATSON,

               Plaintiff-Petitioner,                       No. 04-6074
          v.                                     Western District of Oklahoma
 BRUCE HOWARD, Warden,                              (D.C. No. 03-CV-1340-F)

               Defendant-Respondent.


                                       ORDER *


Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      Kenneth Watson, a state prisoner proceeding pro se, seeks a certificate of

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

which denied his habeas corpus petition under 28 U.S.C. § 2254.    1
                                                                       See 28 U.S.C.

§ 2253(c)(1)(A). Because we conclude that Mr. Watson has failed to make “a

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

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



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.

      1
       We grant Mr. Watson’s motion to amend his opening brief and address in
our order the additional issue he raises.
         On January 19, 2001, Mr. Watson was in a car driven by William

Richardson. Evidently irritated by the slow speed at which the van in front of

them was moving, Mr. Richardson first tailgated the van, then passed it. While

Mr. Richardson’s car was overtaking the van, Mr. Watson leaned out of the

passenger window, making obscene comments and gestures. When Mr.

Richardson parked in a convenience store parking lot, the van pulled in behind

them, blocking his car. As Mr. Watson made a rapid exit from the car, he was

confronted by six uniformed members of the Oklahoma City Police Department’s

Impact Narcotics Squad emerging from the van. One of the narcotics officers

approached the car and observed a baggie containing five rocks of crack cocaine

between the driver and passenger seats. Messrs. Watson and Richardson were

arrested and charged with possession of crack cocaine with intent to distribute.

Mr. Richardson pled guilty and testified against Mr. Watson at the latter’s jury

trial.

         On July 19, 2001, Mr. Watson was convicted on a charge of possession of a

controlled dangerous substance after former convictions of two or more felonies,

Okl. Stat. tit 63, § 2-401, and was sentenced to twenty years’ imprisonment. Mr.

Watson appealed his conviction to the Oklahoma Court of Criminal Appeals

(OCCA), which affirmed it on June 12, 2002. Mr. Watson then made an

application for post-conviction relief in the state district court, which denied his


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application June 9, 2003; this denial was affirmed by the OCCA on August 26,

2003. Undeterred, Mr. Watson filed a petition for habeas relief in federal district

court. The district court denied the petition January 30, 2004, and subsequently

denied his motion for a COA. Mr. Watson now requests a COA of this Court.

      The dismissal of a petition for habeas relief under 28 U.S.C. § 2254 may be

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

2253(c)(1)(A). A COA will issue “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. McDaniel , 529 U.S. 473, 484 (2000) (internal

quotations omitted).

      Mr. Watson alleges four grounds of error in this appeal. First, he claims he

had ineffective assistance of counsel for various reasons related to the testimony

of his co-defendant. Second, Mr. Watson contends that his rights to due process

and equal protection were violated by infractions of Oklahoma law requiring

notice of prosecution witnesses and of certain types of evidence. Third, Mr.

Watson argues that, properly disregarding uncorroborated accomplice testimony,

the prosecution offered insufficient evidence to support his conviction. Finally,


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Mr. Watson claims that the trial judge erred in failing to instruct the jury, in

accordance with Oklahoma law, that accomplice testimony must be corroborated

before it can be relied upon to convict a defendant.

      The government argued before the district court that Mr. Watson’s first,

second, and fourth grounds of appeal have been procedurally defaulted, since they

could have been raised on direct appeal but were not. Oklahoma law generally

dictates that any claims not raised on direct review are waived. Okla. Stat. tit. 22,

§§ 1086, 1089. Although the Oklahoma courts have strictly applied this

procedural bar, Walker v. State , 933 P.2d 327, 332 (Okla. Crim. App. 1997),

under appropriate circumstances we have considered on the merits claims

otherwise barred under Oklahoma law,      Smith v. Mullin , 379 F.3d 919, 926 (10th

Cir. 2004). Rather than addressing the complexities of the relationship between

Oklahoma’s procedural bar rule and the federal courts’ habeas jurisdiction, the

district court disposed of Mr. Watson’s claims on their merits. In order to obtain

a COA, Mr. Watson must demonstrate that reasonable jurists could debate the

propriety of the district court’s decision to dispose of his claims on their merits or

show that he raised issues that deserve encouragement to proceed further.     Slack ,

529 U.S. at 484. If a claim involves Oklahoma’s procedural bar rule and is most

easily disposed of on the merits, a district court may exercise its discretion to do

so. Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000) (declining to


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address “complex issues concerning the applicability of Colorado’s procedural bar

. . . . because the case may be more easily and succinctly [resolved] on the

merits”). Reasonable jurists thus would not dispute the district court’s manner of

resolving the case. As to whether Mr. Watson has raised issues worthy of

encouragement, we agree with the district court’s conclusion that Mr. Watson’s

first, second, and fourth claims are without merit. The OCCA did adjudicate Mr.

Watson’s third claim for relief on its merits; we address this claim, and the

standards that govern our review of it, last.

      Mr. Watson’s inadequate assistance of counsel claims relate primarily to

trial counsel’s treatment of his co-defendant, Mr. Richardson. Mr. Watson

contends that his lawyer failed to prepare adequately for Mr. Richardson’s

testimony, failed to object to the use of accomplice testimony, and failed to object

when Mr. Richardson offered evidence of “other crimes” committed by Mr.

Watson shortly before his arrest. In order to demonstrate ineffective assistance of

counsel, a defendant must show that counsel’s performance was so deficient as to

“f[a]ll below an objective standard of reasonableness” and that the deficient

performance prejudiced the defendant.    Strickland v. Washington , 466 U.S. 668,

688 (1984).

      Mr. Watson’s contention that his lawyer failed to prepare for Mr.

Richardson’s testimony and was surprised by its substance is without support in


                                          -5-
the record. Defense counsel ordered a transcript of the preliminary hearing to

prepare for trial. At the beginning of the trial, defense counsel stated that she

anticipated Mr. Richardson would testify. During cross-examination, defense

counsel questioned Mr. Richardson regarding his plea arrangements, exploring his

motive for untruthful testimony in the established mode. Mr. Watson has pointed

to nothing in the record that suggests counsel was surprised by the content of Mr.

Richardson’s testimony or that some additional form of preparation would have

permitted her to handle Mr. Richardson’s testimony differently or more

effectively.

       At the heart of Mr. Watson’s ineffective assistance claim is his belief that

Mr. Richardson’s testimony should not have been admitted because he was the co-

defendant and because he testified that Mr. Watson made two other sales the

evening of his arrest from the same baggie of crack police later found in the car.

His lawyer was therefore ineffective, in Mr. Watson’s estimation, for failing to

object to Mr. Richardson’s testimony and move for a mistrial.

       Contrary to Mr. Watson’s argument, accomplice testimony is admissible

under Oklahoma law, its character going to the weight of the evidence rather than

to its admissibility.   Frick v. State , 509 P.2d 135, 136 (Okla. Crim. App. 1973).

An objection to the content of Mr. Richardson’s testimony would have been

similarly unsuccessful. Since knowledge is an element of the offense with which


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Mr. Watson was charged, Okl. Stat. tit 63, § 2-401, evidence of the earlier sales

was relevant. While inadmissible as propensity evidence, evidence of other

uncharged crimes is admissible under Oklahoma evidence law to prove intent or

knowledge. Okla. Stat. Ann. tit. 12, § 2404(B);   Douglas v. State , 951 P.2d 651,

673 (Okla. Crim. App. 1997) (evidence of uncharged other crimes “may be

admitted if it proves motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident”).

      Defense counsel’s failure to object could also be characterized as a tactical

decision to acquiesce in the admission of evidence of other acts connected to the

charged conduct to avoid the possible admission of more damaging evidence.

Before Mr. Richardson testified, the trial judge and counsel discussed the scope

of his testimony. Mr. Richardson was prepared to testify that he had known Mr.

Watson for some time, that Mr. Watson was a crack-dealer by profession, that he

had purchased crack from Mr. Watson, and that both Mr. Watson and he had sold

crack for the same people. In light of the government’s proffer of this extensive

and damaging evidence, defense counsel’s decision to accept the government’s

offer to limit its evidence to the two sales the evening in question could well be

characterized as sound trial strategy, upon which no claim of ineffective

assistance may be predicated. See Strickland 466 U.S. at 696-97 (indicating that




                                           -7-
defendants must overcome the “strong presumption” that challenged decisions can

be characterized as sound trial strategy).

       Mr. Watson’s final ineffective assistance argument is that counsel did not

object to an instruction he claims required the jury to find Mr. Watson had

committed two prior felonies. Mr. Watson maintains that state law required the

jury first to determine his guilt of the present crime and then determine whether

the prior convictions had in fact taken place. We do not grant habeas relief

simply on the basis that a jury instruction was defective under state law.       Parker

v. Scott , 2005 WL 19489 (10th Cir. 2005).          Only if the impugned instruction so

infects the entire trial that the resulting conviction violates due process may that

instruction serve as a basis for habeas relief.       Estelle v. McGuire , 502 U.S. 62, 72

(1991).

       Even if we assume the trial court’s instruction violated the requirements of

state law, there is nothing in the record to suggest that the instruction rendered

Mr. Watson’s trial fundamentally unfair. Mr. Watson’s admission on direct and

cross-examination that he had been convicted on five other occasions, as well as

the admission into evidence of the court records of four of those convictions, left

no fact question for the jury to decide. In whatever order the questions were

presented to the jury, the evidence permitted only one conclusion. Even if we

further assumed his lawyer’s failure to object was unreasonable, Mr. Watson


                                              -8-
cannot have been prejudiced by a failure to present the jury with a foregone

conclusion.

       Mr. Watson’s second claim for relief is that the government’s violation of

Oklahoma law requiring timely endorsement of government witnesses and notice

of the use of other crimes evidence deprived him of his rights to due process and

equal protection under the federal Constitution. A state court’s failure to follow

its own law, even if proven, does not ordinarily warrant habeas relief, although

habeas relief may be available if the state law violation resulted in a

fundamentally unfair trial.   Boyd v. Ward , 179 F.3d 904, 921–22 (10th Cir. 1999).

While Oklahoma law requires the timely endorsement of most prosecution

witnesses, Okla. Stat. tit. 22, § 303, a co-defendant whose name appears on the

information is excepted from this requirement: “[t]he appearance of the name on

the face of the information answers every requirement of the law and any

defendant is put on notice that a named co-defendant may testify against him at

trial.” Skelton v. State , 564 P.2d 656, 658 (Okla. Crim. App. 1977). Mr.

Richardson was named on the information charging Mr. Watson; the requirement

of endorsement therefore does not apply to him. Mr. Watson’s claim to a

violation of his rights under the federal constitution must founder for want of an

underlying violation of state law.




                                          -9-
       Mr. Watson also argues that the prosecution’s failure to provide him with

notice that it intended to offer other crimes evidence rises to the level of a

constitutional violation. It is true that Oklahoma law requires advance notice to

criminal defendants when the government intends to offer evidence of other

crimes. Burks v. State , 594 P.2d 771, 774 (Okla. Crim. App. 1979)          (requiring ten

days’ notice and summary of other crimes evidence to be offered at trial)        ,

overruled in part on other grounds in    Jones v. State , 772 P.2d 922, 925 (Okla.

Crim. App. 1989). This rule is not absolute, however; it is intended to prevent the

defendant from being surprised by the use of such evidence, and when there is no

surprise, violations of the rule may be excused.    See Malicoat v. State , 992 P.2d

383, 402–03 (Okla. Crim. App. 2000);      Powell v. State , 995 P.2d 510, 527 (Okla.

Crim. App. 2000).

       Mr. Watson was aware that knowledge was an element of the offense with

which he was charged. Indeed, his trial strategy consisted largely of insisting that

he knew nothing of the drugs in the car and that they must have belonged to Mr.

Richardson. Given the government’s burden to prove each element of the

offense, its offer of evidence tending to show knowledge is very far from

surprising. If Mr. Watson was unaware that Mr. Richardson would testify to other

acts of cocaine distribution before the trial, the government put him on notice

before Mr. Richardson’s testimony began and the defense did not request a


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continuance. Under these circumstances, it is far from clear that Mr. Watson can

establish a violation of state law.

      If Mr. Watson could prove that the prosecution had violated Oklahoma’s

requirement of Burks notice, he must still establish that that violation rendered his

trial fundamentally unfair. Federal law does not require advance notice to

defendants of the government’s intention to use other crimes evidence.         U.S. v.

Kendall , 766 F.2d 1426, 1440 n.6 (10th Cir. 1985) (expressly declining to adopt

the rule in Burks ). Cross-examination and instructions alerted the jury to the

possibility that Mr. Richardson could have motives to testify falsely, about Mr.

Watson’s activities earlier in the evening as well as about other matters. There is

nothing in the record or in Mr. Watson’s arguments to suggest that defense

counsel could have handled Mr. Richardson’s testimony more effectively with ten

days’ notice. Mr. Watson has not demonstrated that the lack of         Burks notice of

other crimes evidence rendered his trial fundamentally unfair, and this claim

therefore does not warrant habeas relief.

      Mr. Watson’s fourth claim       2
                                          is that the trial judge violated Oklahoma law by

failing to instruct the jury that accomplice testimony, if uncorroborated, was

insufficient for conviction, thereby depriving him of due process and the right to




     Since Mr. Watson’s third claim was adjudicated on the merits by the
      2

OCCA, we discuss it separately.

                                               -11-
a fundamentally fair trial.     The Oklahoma rule serves to ensure juries are aware of

the motives an accomplice may have to testify falsely.        Glaze v. State , 565 P.2d

710, 712 (Okla. Crim. App. 1977);         Howard v. State , 561 P.2d 125, 130 (Okla.

Crim. App. 1977). This Court has found that purpose is adequately served by

vigorous cross-examination and instructions informing juries of their

responsibilities to make credibility determinations, bearing in mind the potential

for bias, interest or prejudice.     Foster v. Ward , 182 F.3d 1177, 1193–94 (10th Cir.

1999).

         As there is no constitutional requirement for an accomplice instruction,

habeas relief for a failure to provide such an instruction is warranted only if the

omission of the instruction “had the effect of rendering the trial so fundamentally

unfair as to cause a denial of a fair trial.”      Id. at 1193. Mr. Watson cannot make

such a showing. The trial judge instructed the jury that determining witnesses’

credibility was their province and that they could properly consider bias,

prejudice, or interest in the outcome of the trial. On cross-examination defense

counsel inquired into Mr. Richardson’s plea arrangements, making the jury aware

of possible bias or motives to testify falsely. In closing arguments defense

counsel again referred to Mr. Richardson’s motivations to lie.         The trial court’s

instruction on credibility and defense counsel’s arguments alerted the jury to the

possibility that Mr. Richardson might be lying and informed them of their duty to


                                                -12-
make a determination as to his credibility, satisfying the rationale for, if not the

letter of, the Oklahoma rule and ensuring that the trial was not fundamentally

unfair.

      Mr. Watson’s final claim, that the evidence was inadequate to sustain a

conviction (disregarding the uncorroborated accomplice testimony), was reviewed

by the state courts on the merits. We accordingly apply the extraordinarily

deferential standard of review required by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA).      Dockins v. Hines , 374 F.3d 935, 938 (10th Cir.

2004) (applying AEDPA deference to a state court decision in considering a

habeas petitioner’s request for a COA). A federal court can grant a habeas

petition on a claim adjudicated on the merits by a state court only if the state

court judgment (1) was contrary to, or involved an unreasonable application of,

clearly established federal law; or (2) reflects an unreasonable determination of

the facts in light of the evidence before the court. 28 U.S.C. § 2254(d).

      The OCCA’s rejection of Mr. Watson’s claim of insufficient evidence was

not contrary to clearly established federal law. Federal law does not require

independent corroboration of accomplice testimony: “a jury may convict based on

the uncorroborated testimony of a co-conspirator.”    United States v. Torres , 53

F.3d 1129, 1140 (10th Cir. 1995). The OCCA’s application of the more




                                          -13-
demanding Oklahoma standard requiring independent corroboration is not

contrary to the less rigorous federal standard.

      Neither did the OCCA’s ruling reflect an unreasonable determination of the

facts in light of the evidence before it. We are not required, as was the OCCA, to

inquire into whether there was sufficient evidence to support the verdict absent

Mr. Richardson’s testimony. Federal law governing insufficiency claims requires

a reviewing court to determine only whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”     Jackson v.

Virginia , 443 U.S. 307, 319 (1979).

      The elements of drug possession, of which Mr. Watson was convicted, are

knowing and intentional possession of a controlled substance. Okl. Stat. tit. 63, §

2-401. Mr. Richardson testified that the bag of crack cocaine found in the car

belonged to Mr. Watson and that he had made two sales from the baggie on the

night of the arrest. One of the arresting officers testified that the baggie was

found between the driver and passenger seats, and that it could not have been in

this position throughout the drive due to Mr. Richardson’s erratic driving;

someone had to have moved the baggie after the car stopped. He also testified

that Mr. Richardson’s hands did not leave the steering wheel once the car had

stopped. Finally, he testified to his belief that Mr. Watson had placed the drugs

where they were found because, in his experience, suspects who are trying to hide


                                          -14-
drugs attempt to place the greatest distance possible between themselves and the

contraband.

       “So long as the testimony is not incredible on its face and is otherwise

capable of establishing guilt beyond a reasonable doubt, it remains solely within

the province of the jury to determine the credibility of each witness.”     Foster , 182

F.3d at 1193 (internal quotations omitted). According the deference required by

federal law to jury credibility determinations, we find ample evidence to support

the jury’s verdict, and the OCCA did not make an unreasonable determination of

the facts in so finding. Mr. Watson’s final claim therefore suffers the same fate

as the first three, and we accordingly    DENY Kenneth Watson’s request for a

COA and DISMISS this appeal.

                                                   Entered for the Court,

                                                   Patrick Fisher, Clerk




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