                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      August 27, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 CHARLES F. BERNARD,

                 Petitioner-A ppellant,                 No. 07-7017
          v.                                   Eastern District of Oklahoma
 C HA RLES R AY ,                               (D.C. No. CIV-05-507-FHS)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


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


      Charles F. Bernard, Sr., 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. Bernard has failed

to make “a substantial showing of the denial of a constitutional right,” we deny

his request for a COA, and dismiss the appeal. Id. § 2253(c)(2).




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        This order is not binding precedent, except under the doctrines of law of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

      On January 24, 2001, a M cAlester, Oklahoma, police officer pulled over

M r. Bernard’s El Cameno after observing a traffic violation— namely, a seatbelt

hanging out the car door. The officer had been on the lookout for the car because

he had previously received from the FBI a tip that an individual named Chuck

Bernard would be traveling through M cAlester in an off-W hite El Cameno w ith a

large amount of marijuana. The FBI had acquired this information from a

confidential informant.

      After issuing M r. Bernard a citation for the seatbelt violation, the officer

asked if he could search the vehicle. M r. Bernard consented. The search revealed

a false compartment which held clear plastic bags containing a brown, leafy

substance. At this point, the police obtained a search warrant and impounded the

vehicle. The subsequent search revealed that the car contained 84.5 pounds of

marijuana.

      An Oklahoma jury convicted M r. Bernard of trafficking in marijuana and

recommended thirty years imprisonment, a sentence which the judge subsequently

imposed. After losing challenges on direct appeal and in state collateral

proceedings, M r. Bernard challenged the execution of his sentence by filing a

habeas corpus petition under 28 U.S.C. § 2254 in the United States D istrict Court

for the Eastern District of Oklahoma. He alleged that the search of his vehicle

violated the Fourth Amendment, that his appellate counsel was ineffective for

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failing to argue that the confidential informant did not actually exist, and that

failure to allow discovery on the issue of the informant denied him a fair trial.

The district court denied his petition and M r. Bernard now applies for a COA.

                                      Discussion

      The denial of a motion for 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.” Id. § 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).

      M r. Bernard raises tw o claims in his COA petition: (1) that appellate

counsel was ineffective because he failed to raise on appeal the issue concerning

the existence of the confidential informant and, (2) that the trial court did not

hold a full and fair Franks hearing on the issue of the existence of the same

informant. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).

                  A. Ineffectiveness of Appellate Counsel Claim

      M r. Bernard argues that counsel was ineffective for failing to raise on

appeal the issue of whether the trial court erred in its “refusal . . . to confirm the

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existence of a confidential informant.” Appellant’s Br. 1. 1 To show

ineffectiveness of counsel a petitioner must show that counsel’s performance was

both deficient and prejudicial to his defense. Strickland v. W ashington, 466 U.S.

668, 687 (1984). The Strickland standard applies to appellate as well as trial

counsel. Evitts v. Lucey, 469 U.S. 387, 393–400 (1985); United States v. Cook,

45 F.3d 388, 392 (10th Cir. 1995). In analyzing the strategic decision to omit an

issue on appeal, we grant deference to the professional judgment of the appellate

attorney. Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “W e examine

the merits of the omitted issue,” and if it “is w ithout merit, counsel’s failure to

raise it does not constitute constitutionally ineffective assistance.” Cook, 45 F.3d

at 392–93 (internal citation and quotation marks omitted).

      The government has long had the authority to withhold the identity of

informants in “the furtherance and protection of the public interest in effective

law enforcement.” Rovario v. United States, 353 U.S. 53, 59 (1957). This

authority was granted to recognize the civic duty citizens have to inform the

police of illegal activity, and to encourage that cooperation by shielding

informants’ identities. Id. at 59. W hile this ability to prevent the accused from

confronting an informant is not unlimited, see id. at 60, “[d]isclosure of an



      1
        In his petition below, M r. Bernard further explains this claim: “[Counsel]
refused to present the claim that there was never an informant and that fact could
have been used to impeach the credibility of all of the State’s w itnesses.” R. Vol.
I, Doc. 1, at 7.

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informant is not required where the information sought from him or her would be

merely cumulative, or where the informant is not a participant in or a witness to

the crime charged.” United States v. M oralez, 908 F.2d 565, 567 (10th Cir.

1990). Seemingly in recognition of the wide latitude we give the government on

this issue, M r. Bernard is not challenging the concealment of the informant’s

identity. Rather, he challenges the actual existence of the informant. Essentially,

he asks us to overrule the trial court’s determination that the informant was a real

person.

      Paul W atson, an F.B.I. Agent, testified as to the existence of the

confidential informant in this case. Based on this testimony, the trial judge found

that the confidential informant was real. In order to obtain a further evidentiary

hearing on this issue at trial, M r. Bernard would have had to make a “substantial .

. . showing” that a statement in the affidavit supporting the search warrant was (1)

false, (2) made knowingly and intentionally or with reckless disregard for the

truth, and (3) necessary to the finding of probable cause. Franks, 438 U.S. at

155–56, 171–72. M r. Bernard has not satisfied these requirements. He has

offered no evidence to show that anyone lied about the existence of the

confidential informant. Any hearing on the matter would be based on rank

speculation. “Nothing in the Due Process Clause of the Fourteenth Amendment

requires a state court judge . . . to assume the arresting officers are committing

perjury.” M cCray v. Illinois, 386 U.S. 300, 313 (1967). Additionally, even if the

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FBI invented the informant from whole cloth, the seatbelt violation furnished the

M cAlster police with independent reasonable suspicion to stop M r. Bernard. See

Whren v. United States, 517 U.S. 806, 811–14, 819 (1996). M r. Bernard’s

consent to the search and the subsequent uncovering of a false compartment

containing what appeared to be marijuana then furnished the police with

independent grounds to support a search warrant. Consequently, the informant

issue had no potential merit on appeal and counsel’s failure to raise it did not

constitute deficient performance. No reasonable jurist could dispute the district

court’s resolution of this issue and M r. Bernard’s application for a COA on this

ground fails.

            B. Disclosing the Existence of a Confidential Inform ant

      In a similar vein, M r. Bernard argues that the trial court erred by not

holding a hearing or allowing discovery on the issue of the existence of the

informant. M r. Bernard failed to present this argument on direct appeal to the

Oklahoma Court of Criminal Appeals. Consequently, the state court refused to

entertain the argument in M r. Bernard’s state post-conviction relief proceedings.

Claims that are defaulted in state court on adequate and independent state

procedural grounds will not be considered by a habeas court unless the petitioner

can show cause and prejudice or a fundamental miscarriage of justice. Smith v.

M ullin, 379 F.3d 919, 925 (10th Cir. 2004). In this case, the default rule is an

adequate and independent procedural ground, and M r. Bernard cannot

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demonstrate cause and prejudice or a fundamental miscarriage of justice. To the

extent M r. Bernard attempts to show cause by pinning the failure to raise the

issue on the ineffective assistance of his counsel, we have already concluded that

the omission of this meritless claim on appeal did not constitute faulty

performance. Again, no reasonable jurist could dispute the district court’s

resolution of this issue.

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

this appeal.

                                       Entered for the Court,

                                       M ichael W . M cConnell
                                       Circuit Judge




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