                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               DEC 4 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 TEDDY LEE MOORE,

          Petitioner-Appellant,

               v.                                          No. 97-6273
                                                     (D.C. No. CIV-97-273-M)
 BOBBY BOONE,                                              (W.D. Okla.)

          Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Petitioner Teddy Lee Moore requests a certificate of appealability to appeal

the district court’s denial of his habeas petition under 28 U.S.C. § 2254. This

court will issue a certificate of appealability when a petitioner makes a substantial


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We deny

the request and dismiss the appeal.

      Moore was convicted of first-degree murder in 1988. His direct appeal was

affirmed by the Oklahoma Court of Criminal Appeals. His request for post-

conviction relief was denied and the Oklahoma Court of Criminal Appeals

affirmed that denial. Moore filed his § 2254 petition on February 26, 1997,

claiming (1) ineffective assistance of counsel, (2) denial of due process by the

government’s failure to allege in the information each element of the crime

charged, 1 (3) improper investigation by the police department, and (4)

insufficiency of the evidence to prove malice aforethought. The district court

adopted the magistrate’s report and recommendation and denied Moore’s habeas

petition.

                         Ineffective Assistance of Counsel

      A habeas petitioner alleging ineffective assistance of counsel must show

counsel’s performance was deficient and that such deficient performance

prejudiced petitioner’s defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Petitioner must show counsel’s errors were so serious that petitioner was

deprived of a fair trial. Id.


      1
         Moore also asserts the state placed him in double jeopardy by failing to charge
him in a proper felony information. We address this issue in our discussion of the alleged
ineffectiveness of counsel for failing to object to the information.

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      Moore contends his counsel should have requested a jury instruction on

involuntary manslaughter, excusable homicide, or self-defense. 2 Oklahoma has

no crime titled “involuntary manslaughter.” Homicide is excusable

             1. When committed by accident and misfortune in doing any lawful
      act, by lawful means, with usual and ordinary caution, and without any
      unlawful intent.
             2. When committed by accident and misfortune in the heat of
      passion, upon any sudden and sufficient provocation, or upon a sudden
      combat provided that no undue advantage is taken, nor any dangerous
      weapon used, and that the killing is not done in a cruel or unusual manner.

Okla. Stat. tit. 21, § 731. Moore admitted he initiated the confrontation with the

victim by hitting him; thus he was not acting lawfully as required by § 731, and

the crime involved a dangerous weapon. Moore testified he did not act in self-

defense, but that his gun discharged accidentally. Therefore, the evidence

presented did not support the giving of an instruction on either excusable

homicide or self-defense.

      Moore also argues his counsel should have objected to the information on

double jeopardy grounds. He asserts the information failed to “recite facts to

allege every element of the underlying felony,” thereby implicating the Double

Jeopardy Clause. The information charged first-degree murder, i.e., “wilfully,


      2
          Moore asserted in his petition that his counsel should have requested an
instruction on involuntary manslaughter or self-defense. On appeal, he asserts counsel
should have requested an instruction on excusable homicide or self-defense. Construing
his pro se motion liberally, as we must, see Haines v. Kerner, 404 U.S. 519, 520 (1972),
we discuss all three instructions.

                                           -3-
unlawfully and with malice aforethought” killing Donald Ray Jackson “by

shooting him with a handgun, inflicting mortal wounds which caused his death.”

Okla. Stat. tit. 21, § 701.7(A) defines first-degree murder as “unlawfully and with

malice aforethought caus[ing] the death of another human being.” An

information must contain the elements of the offense charged and provide

sufficient detail to protect defendant from double jeopardy. Russell v. United

States, 369 U.S. 749, 764-65 (1962). The information in this case satisfied these

requirements.

      The information stated Moore had been convicted in Texas state court in

1985 of possession of a controlled substance; therefore, he was subject to an

enhanced sentence pursuant to the habitual offender statute, Okla. Stat. tit. 21, §

51. The habitual offender statute does not create a new or independent crime and,

therefore, it was not necessary for the government to state the elements of the

possession offense in the first-degree murder information. See Lynch v. State,

909 P.2d 800, 804 (Okla. Crim. App. 1995). Nor did the habitual offender

sentencing scheme offend Moore’s right against double jeopardy. The statute

provided an enhanced sentence for the murder conviction, not additional

punishment for the possession conviction. See Yparrea v. Dorsey, 64 F.3d 577,

579 (10th Cir. 1995).




                                         -4-
      Moore also asserts counsel failed to investigate the offense and determine

if the state’s witnesses were truthful. “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691. Moore does not allege

what counsel could have discovered by further investigation and thus cannot show

his counsel’s performance prejudiced his defense.

                 Inadequate Investigation by Police Department

      Moore argues the police department failed to conduct a proper investigation

by failing to fingerprint the gun used in the crime to determine who had fired the

weapon, by failing to fingerprint the money found on Moore, and by failing to

perform a paraffin test on the victim or Moore. Moore does not show how further

investigation could have exculpated him. He admitted he was holding the gun

when it discharged. More importantly, he fails to allege a constitutional violation

or violation of federal law as required by § 2254. Absent a showing of bad faith,

the Due Process Clause is not violated by failure of the police to gather

potentially exculpatory evidence. Miller v. Vasquez, 868 F.2d 1116, 1119-20 (9th

Cir. 1989). Mere negligence does not rise to the level of a constitutional

violation. See Romero v. Fay, 45 F.3d 1472, 1479 (10th Cir. 1996). Moore fails

to allege, much less prove, that the police department was motivated by bad faith

to not investigate his case.


                                        -5-
                 Insufficient Evidence of Malice Aforethought

      Moore asserts the government presented no evidence of the malice

aforethought element of first-degree murder. We must determine whether,

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). Malice is “that

deliberate intention unlawfully to take away the life of a human being, which is

manifested by external circumstances capable of proof.” Okla. Stat. tit. 21, §

701.7(A). Malice aforethought may therefore be proved by circumstantial

evidence. Cavazos v. State, 779 P.2d 987, 989 (Okla. Crim. App. 1989).

      Lindy Lozier testified he saw Moore approach a pickup truck and search

behind the front seat and in the truck bed. Moore then followed the victim around

the side of an apartment building, leaving Lozier’s sight. Approximately one

minute later, Lozier heard a gunshot. A man and a young girl ran past Lozier and

then Moore appeared. Moore had a gun in his hand and walked quickly toward

the pickup, got in the pickup, and drove off very fast. Richard Knight testified

Moore approached the victim, grabbed him around the neck from behind with his

right arm, and began hitting him in the face. Moore hit the victim approximately

three times with his left fist while holding a revolver in his right hand next to the

victim’s head. Knight and his daughter ran away and a few seconds later Knight


                                         -6-
heard a gunshot. The medical examiner testified the victim died of a gunshot

wound to the head. Viewing this evidence in the light most favorable to the

government, we conclude a reasonable trier of fact could have found the element

of malice aforethought beyond a reasonable doubt.

      The certificate of appealability is DENIED and this appeal is DISMISSED.

The mandate shall issue forthwith.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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