                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   December 4, 2007
                                  TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                      Clerk of Court

 BENAD ABIODUN,

                 Petitioner-Appellant,                   No. 07-1184
          v.                                            (D. of Colo.)
 DOUGLAS MAURER,                             (D.C. No. 05-cv-2305-WDM-PAC)
 DEPARTMENT OF HOMELAND
 SECURITY, BUREAU OF
 IMMIGRATION AND CUSTOMS
 ENFORCEMENT, JOHN SUTHERS,
 Attorney General of the State of
 Colorado,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **


      Benad Abiodun is currently on parole under the supervision of the Colorado

Department of Corrections. He seeks a certificate of appealability (COA) to

challenge the district court’s denial of habeas corpus relief to him under 28


      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
U.S.C. § 2254. The district court denied all of Abiodun’s constitutional claims.

Proceeding pro se, 1 Abiodun now seeks a COA from this court on four of the

grounds raised below.

      We conclude Abiodun is not entitled to relief under § 2254 and therefore

DENY his petition.

                                 I. Background

      Benad Abiodun is in both state and federal custody. The Colorado

Department of Corrections supervises his parole for a state drug conviction, while

the Bureau of Immigration and Customs Enforcement (ICE) has detained him in

federal jail for an immigration violation. Abiodun’s drug conviction in Colorado

state court made him a removable alien under federal law. Thus, when Abiodun

was paroled from Colorado state prison, ICE officials placed him in an

immigration jail to await the conclusion of removal proceedings against him.

Those proceedings determined that Abiodun should be removed by virtue of his

conviction for an aggravated felony.

      A. Factual and Procedural History

      Abiodun, an alien from Nigeria, has lived in the United States since the

1990s. His trouble with the law began in 2001. In June of that year, Abiodun

sold cocaine to undercover agents on two separate occasions. He was

      1
         Because Abiodun proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).

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subsequently charged and convicted of two counts of possession and two counts

of distribution of a controlled substance. See People v. Abiodun, 111 P.3d 462,

464 (Colo. 2005). He was sentenced to four concurrent four-year terms of

imprisonment, as well as five-years mandatory parole. Id. On appeal, the

Colorado Court of Appeals determined the offenses of possession and distribution

merged under Colorado state law. The court therefore vacated Abiodun’s two

convictions for possession, while simultaneously affirming his two convictions

for distribution. Id. The Colorado Supreme Court affirmed the court of appeals’s

decision in 2005. Id.

      Upon learning of Abiodun’s drug conviction, ICE officials began removal

proceedings against him. As an alien convicted of an aggravated felony, he was

removable from the United States under 8 U.S.C. § 1227(a). See Abiodun v.

Gonzales, 461 F.3d 1210, 1215 (10th Cir. 2006). Abiodun’s parole from

Colorado state prison began on December 30, 2004. Id. at 1212. Federal

immigration authorities immediately took him into custody. Id. Five months

later, an immigration judge ordered Abiodun removed from the United States to

his homeland of Nigeria. Id. at 1214. The Board of Immigration Appeals (BIA)

affirmed the removal order. This court has twice reviewed the BIA’s order, and

twice affirmed it. See id. at 1218; Abiodun v. Gonzales, 217 F. App’x 738,

742–43 (10th Cir. 2007).

      B. Abiodun’s Claims under 28 U.S.C. § 2254

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         Abiodun now seeks review of his state court conviction under 28 U.S.C.

§ 2254. He petitioned the federal district court for relief on eight grounds.2 The

district court, following a magistrate judge’s recommendation, denied relief on

every ground. See Abiodun v. Maurer, No. 05-2305, 2007 WL 987482 (D. Colo.

Mar. 30, 2007) (slip copy). The district court also dismissed from the suit, as

improperly pled defendants, the federal officials holding Abiodun at the ICE

facility. See id. at *2. The Colorado attorney general is the only remaining

defendant. On appeal to this court, Abiodun does not challenge the dismissal of

the federal officials. He renews four of the claims brought before the district

court.

                                   II. Discussion

         Abiodun seeks a COA from this court on four grounds. First, he argues the

Colorado Supreme Court’s decision constituted an unreasonable application of

double jeopardy principles to his case. Second, he asserts there was insufficient

evidence to support his conviction. Third, he claims prosecutorial misconduct

rose to the level of a constitutional violation. Fourth, he argues he was denied

         2
         Abiodun’s eight grounds for relief were: (1) insufficient evidence to
support possession and distribution convictions; (2) convictions for possession
and distribution violated the Double Jeopardy Clause; (3) prosecutorial
misconduct violated the right to due process and a fair trial; (4) prosecutor’s
failure to disclose exculpatory evidence to the jury violated the Constitution; (5)
conviction violated the Sixth Amendment’s Confrontation Clause; (6) conviction
was obtained without effective assistance of counsel; (7) conduct for which the
petitioner was prosecuted was constitutionally protected; and (8) ICE officials
violated procedural and substantive due process by issuing a detainer against him.

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effective assistance of counsel at trial and on appeal. All of these claims were

raised in Abiodun’s state court proceedings, as well as before the district court.

      To obtain a COA, Abiodun must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). This standard is satisfied by demonstrating 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 quotation marks omitted). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail.” Miller-El, 537

U.S. at 338.

      A. Double Jeopardy

      The district court correctly concluded Abiodun’s sentence did not violate

the Fifth Amendment’s Double Jeopardy Clause. The Colorado Supreme Court

affirmed the court of appeals’s decision to vacate the two counts of possession for

which Abiodun had been convicted. People v. Abiodun, 111 P.3d 462, 467 (Colo.

2005). The high court agreed with the court of appeals that the acts of possessing

and distributing a controlled substance merged into one offense under Colorado

Revised Statutes § 18-18-405(1)(a) (2000). Id. However, because Abiodun had




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admitted to two separate acts of distribution, the Colorado Supreme Court

affirmed Abiodun’s two convictions for distribution of a controlled substance. Id.

      Abiodun now challenges the Colorado Supreme Court’s decision to uphold

his two convictions for distribution. It is undisputed, however, that Abiodun

engaged in two separate transactions, each on different days and in different

amounts. Id. at 464. Abiodun admitted this at trial. Because the Double

Jeopardy Clause is not implicated when a defendant is convicted of two wholly

separate offenses that occur days apart, Abiodun’s claim fails. See, e.g.,

Blockburger v. United States, 284 U.S. 299, 302 (1932) (“Each of several

successive sales constitutes a distinct offense, however closely they may follow

each other.”). The Colorado Supreme Court’s decision in no way violated

Abiodun’s constitutional rights; rather, the court upheld his rights under the Fifth

Amendment and offered him all the relief to which he was entitled.

      B. Sufficiency of the Evidence

      The district court correctly concluded there was sufficient evidence for the

Colorado state courts to uphold Abiodun’s second conviction for distribution.

Abiodun claims the state failed to prove beyond a reasonable doubt that he sold at

least one ounce of cocaine in the second transaction. Proof of an ounce is

required for the mandatory minimum penalty Abiodun received. See Colo. Rev.

Stat. § 18-18-405(3)(a)(I) (2000) (prescribing a sentence where the amount of




                                         -6-
drugs “is or has been represented to be . . . [a]t least twenty-five grams or one

ounce but less than four hundred fifty grams”).

      “[T]he relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, 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 sole evidence on the amount of cocaine Abiodun

distributed came from the testimony of one of the undercover agents. People v.

Abiodun, 87 P.3d 164, 165 (Colo. Ct. App. 2003). The agent testified Abiodun

confessed, after his arrest, he had just sold “about an ounce of crack cocaine.” Id.

The Colorado Court of Appeals and Colorado Supreme Court concluded the

agent’s testimony was sufficient to satisfy the burden of proof under the relevant

statute. Id. at 166; People v. Abiodun, 111 P.3d 462, 471 (Colo. 2005). Thus, the

state courts concluded a rational jury could have found the essential elements of

the crime. Because state court interpretations of state law are binding on this

court in habeas proceedings, Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir.

2005), we cannot conclude there was insufficient evidence to support Abiodun’s

second conviction.

      C. Prosecutorial Misconduct

      The district court correctly rejected Abiodun’s claim of prosecutorial

misconduct rising to the level of a constitutional violation. The basis of

Abiodun’s argument was a single question posed by the prosecutor during his

                                          -7-
cross-examination of Abiodun. The prosecutor asked Abiodun, “You are not a

U.S. citizen, is that right?” People v. Abiodun, 87 P.3d 164, 167 (Colo. Ct. App.

2003). Defense counsel objected on grounds of relevance and the court sustained

the objection. The prosecutor did not make any other similar remarks and did not

refer to Abiodun’s nationality in his closing statement.

      To prevail on this claim, Abiodun must show the prosecutor’s conduct “so

infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The

Colorado Court of Appeals found that “the questioning was not prejudicial,

flagrant, or glaringly or tremendously improper.” Abiodun, 87 P.3d at 167. We

agree and reject Abiodun’s claim. 3

      D. Ineffective Assistance of Counsel

      The district court correctly concluded Abiodun had not suffered a

constitutional violation as a result of ineffective assistance of counsel. Abiodun

argues his trial and appellate lawyers failed to make certain motions Abiodun

thought favorable to his defense. Moreover, Abiodun asserts his trial counsel

failed to sufficiently cross-examine the undercover agent, neglected to call

Abiodun’s wife as a witness, and failed to request appropriate jury instructions.


      3
         Abiodun’s citation to United States v. Saccoccia, 58 F.3d 754, 775–76
(1st Cir. 1995), offers him no support. In that case, the defendants pointed to four
potentially prejudicial remarks made by the prosecutor about their Colombian
nationality, yet the court found no prosecutorial misconduct.

                                         -8-
      “Judicial scrutiny of counsel’s performance must be highly deferential.”

Strickland v. Washington, 466 U.S. 668, 689 (1984). To prevail, Abiodun must

demonstrate his lawyers’ performance fell below an objective standard of

reasonableness and the deficiency prejudiced his defense. Id. at 687–88.

Counsels’ failure to raise an unmeritorious issue at trial or on appeal does not

constitute constitutionally ineffective assistance of counsel. Sperry v. McKune,

445 F.3d 1268, 1274–75 (10th Cir. 2006).

      After evaluating each of Abiodun’s claims of ineffective assistance, the

magistrate judge found his lawyers’ decisions were reasonable and in no way

prejudicial to Abiodun’s defense. We have conducted a complete review of the

state court record. For substantially the same reasons as set forth in the

magistrate judge’s report and recommendation, and adopted by the district court,

we reject Abiodun’s claims. See Maurer, 2007 WL 987482, at *3 (“I agree with

[the] recommendation that Abiodun received effective assistance of counsel in the

state court proceedings, notwithstanding his objections to the contrary, which are

based on assumption and conjecture.”).

                                  III. Conclusion

      For the reasons set forth above, we DENY Abiodun’s petition for a COA




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and DISMISS this appeal. We also DENY his motion to proceed in forma

pauperis.



                                   Entered for the Court


                                   Timothy M. Tymkovich
                                   Circuit Judge




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