                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        October 25, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 JERALD LEECH,

       Petitioner-Appellant,

 v.                                                      No. 05-6120
                                                   (D.C. No. CIV-04-0306-T)
 REGINALD HINES,                                        (W.D. Okla.)

       Respondent-Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.



      Jerald Leech, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. For substantially the same reasons set forth by the district

court, we DENY a COA and DISMISS.

      After buying more than an ounce of methamphetamine from a police

informant as part of a sting operation, and telling the informant that he was going

to sell the drugs, Leech was arrested for Trafficking in a Controlled Dangerous

Substance in violation of Okla. stat. tit. 63, § 2-415. He was convicted and

sentenced to twenty years imprisonment.
      Leech filed a direct appeal to the Oklahoma Court of Criminal Appeals

(“OCCA”). He claimed the police engaged in sentencing entrapment by having an

informant give him enough methamphetamine for a trafficking conviction and that

the trial court committed reversible error when it failed to instruct on the lesser

offense of possession. The appeal did not claim ineffective assistance of trial

counsel. The OCCA rejected his appeal, but reduced his sentence to ten years

imprisonment. Leech v. State, 66 P. 3d 987 (Okla. Crim. App. 2003)

      In an application for post-conviction relief filed in state court, Leech

claimed that he should have been given the opportunity to present the defense of

sentencing entrapment to the jury, that he was denied effective assistance of trial

counsel because his lawyer failed to present sentencing entrapment evidence to

the jury, and that he was denied effective assistance of appellate counsel because

his appellate counsel failed to raise the issue of ineffective assistance of trial

counsel on direct appeal. His application was rejected, but the Oklahoma courts

failed to address the ineffective assistance of appellate counsel claim.

      Leech then brought a petition for habeas corpus under 28 U.S.C. § 2254.

The district court denied his petition and Leech’s subsequent application for a

COA. Leech now seeks a COA from this court and presents the same arguments




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he presented to the district court. 1

       A habeas petitioner is not entitled to relief if his claim has been adjudicated

on the merits by a state court unless that state court’s decision was “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or was “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). If the state court did not

adjudicate a petitioner’s claim on the merits, “we review questions of law de novo

and questions of fact for clear error.” Cook v. McKune, 323 F.3d 825, 830 (10th

Cir. 2003).

       In his habeas petition, Leech claims that his right to present a defense

under the Due Process Clause of the Fourteenth Amendment was denied because



       1
        Leech’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Leech to show “that reasonable jurists could
debate whether (or, for that matter, agree that) 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) (quotations omitted). Because the district court denied Leech a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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the defense of sentencing entrapment was not presented to the jury. Further, he

claims that he was in fact entrapped into buying the methamphetamine. He also

claims that he was denied effective assistance of both trial and appellate counsel.

      Leech’s Fourteenth Amendment rights were not violated. Under Oklahoma

law, when “the defense of entrapment is fairly raised by the evidence, the burden

of proof is upon the State to show beyond a reasonable doubt that the accused was

not entrapped and the jury must be so instructed.” Lee v. State, 655 P.2d 1046,

1047 (Okla. Crim. App. 1982). This rule covers sentencing entrapment. Leech,

66 P.3d at 990. Although it is settled law that defendants have no constitutional

right to present the defense of entrapment, United States v. Russell, 411 U.S. 423,

433 (1973), this Circuit has not made clear whether the failure of a state court to

issue a jury instruction for entrapment when proper under state law is a violation

of the Due Process Clause of the Fourteenth Amendment that can be raised as part

of a habeas petition. See Vega v. Suthers, 195 F.3d 573, 583 (10th Cir. 1999)

(declining to reach “that distinct and possibly more troubling question.”). The

Ninth Circuit has held that a failure to grant an instruction for entrapment when

justified under state law can violate the Fourteenth Amendment. Bradley v.

Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002).

      We need not reach this issue because a state court, the OCCA, considered

the evidence and held that Leech was not entitled to a jury instruction about


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sentencing entrapment. The OCCA held that there was not enough evidence to

warrant a jury instruction on either of the elements of sentencing entrapment.

Leech, 66 P.3d at 990 (“[I]f requested, the instruction would have properly been

refused as not being supported by any evidence”). Given the lack of evidence in

the record of either of the elements of sentencing entrapment, this determination

was not an “unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d)(2). As such, Leech fails to raise a cognizable

federal habeas corpus claim for violation of the Fourteenth Amendment.

      Leech also claims that he was in fact entrapped into buying enough

methamphetamine to warrant a trafficking conviction. The OCCA considered and

rejected this argument. Leech, 66 P.3d at 990 (“There is no evidence of

entrapment in the record.”). Habeas relief is not appropriate because that decision

does not violate federal law and is not based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

      Finally, Leech raises two ineffective assistance of counsel claims. The first

is that his trial counsel failed to raise the sentencing entrapment defense. In

denying Leech’s motion for post-conviction relief, the OCCA examined the issue

and found that this claim was barred on procedural grounds. Leech also claims

that the failure to allege ineffective assistance of trial counsel on direct appeal

rendered appellate counsel’s representation ineffective. The OCCA did not


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review this argument, so we review the questions of law de novo and questions of

fact for clear error. Cook, 323 F.3d at 830.

      The two inquiries are bound up in one. All ineffective assistance of

counsel claims must meet the test announced by the Supreme Court in Strickland

v. Washington, 466 U.S. 668, 687-91 (1984), which requires habeas petitioners to

show constitutionally deficient performance by demonstrating that counsel’s

conduct was objectively unreasonable and resulted in prejudice by demonstrating

a “reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” For a petitioner to prove

constitutionally deficient performance of appellate counsel, a petitioner must

show either that the issue that was not appealed is “so plainly meritorious that it

would have been unreasonable to winnow it from even a strong appeal” or that,

when considered in the context of the rest of the appeal and with deference given

to the professional judgment of the attorney, it was unreasonable not to appeal

that issue. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “[I]f the

issue is meritless, its omission will not constitute deficient performance.” Id.

      In this case, appellate counsel did not err in failing to press the ineffective

assistance of trial counsel claim because it is meritless. Leech argues that his

trial counsel was deficient because he did not call Leech to the stand, did not

conduct a proper investigation, and did not argue that a police videotape of the


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transaction provided exculpatory evidence. None of these arguments are

availing. Counsel attempted to establish the sentencing entrapment claim through

cross-examination and in his closing statement. Leech was informed of his right

to testify. There is nothing in the record, and nothing alleged, indicating that

there was evidence that Leech’s counsel missed because of a lack of

thoroughness. Leech’s allegations that his trial counsel was ineffective do not

come close to meeting the rigorous standard for constitutionally deficient

performance set forth in Strickland. Because Leech’s ineffective assistance of

trial counsel claim is meritless, his appellate counsel was not ineffective for

failing to press this argument on appeal.

      For the reasons set forth above, Leech’s request for a COA is DENIED and

the appeal is DISMISSED. Leech’s motion to proceed in forma pauperis is

granted.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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