                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                      August 14, 2007
                              FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                       Clerk of Court



    B LA ISE K O K IN D A ,

                 Petitioner-A ppellant,

    v.                                                  No. 06-6374
                                                 (D.C. No. CIV-06-0828-HE)
    C HA RLES PETER SO N ,                              (W .D. Okla.)

                 Respondent-Appellee.



                              OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




         Petitioner Blaise Kokinda appeals the denial of his 28 U.S.C. § 2254 habeas

corpus petition. M r. Kokinda was convicted by a jury of trafficking in illegal

drugs and possessing drug paraphernalia. He was stopped while driving through

Oklahoma and a search of his rented sport utility vehicle revealed, among other

things, a suitcase containing approximately forty-six pounds of marijuana.



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
M r. Kokinda argued in his habeas corpus petition that (1) the stop and search of

his vehicle violated the Fourth Amendment, and (2) that his Sixth Amendment

right to effective assistance of counsel was violated because “his A ppellate

Counsel failed to argue whether the drug dog’s jumping into Petitioner’s vehicle

through the driver’s side window constituted an unreasonable search and seizure

affected by the police.” R., Doc. 1 at 4.

      Despite the fact that M r. Kokinda had not exhausted his state court

remedies as to his claim of ineffective assistance of counsel, the district court

adopted the report and recommendation of the magistrate judge assigned to the

case and denied M r. Kokinda’s habeas corpus petition on its merits. On appeal,

M r. Kokinda argues that the district court erred in denying his Fourth Amendment

claim and in failing to either hold an evidentiary hearing regarding his ineffective

assistance of counsel claim or allow him to exhaust his Oklahoma state court

remedies as to that claim. W e have granted M r. Kokinda a certificate of

appealability (C OA ) as to his ineffective assistance of counsel claim and now,

exercising our jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), AFFIRM the

district court’s denial of the petition.

                                    BACKGROUND

      W hile driving through Oklahoma, M r. Kokinda was stopped for making an

illegal lane change by Sergeant Chad Cook of the Oklahoma City Police

Department. During the stop, Sergeant Cook became suspicious that M r. Kokinda

                                            -2-
might be involved in other illegal activity. According to Sergeant Cook,

M r. Kokinda would not make eye contact with him and kept rubbing his neck and

forehead. M r. Kokinda’s breathing was heavy and his hands and lips were

trembling. These signs of nervousness increased as Sergeant Cook asked

M r. Kokinda more questions. M r. Kokinda told Sergeant Cook that he was

traveling from California to Pennsylvania to visit his mother; but Mr. Kokinda’s

rental agreement showed that he was scheduled to return the car to a rental

company office in Spokane, W ashington in five days. M r. Kokinda told Sergeant

Cook that he had originally rented the car for the purpose of taking his girlfriend

on a surprise trip; but the Sergeant noticed that the rental agreement showed that

M r. Kokinda’s girlfriend was the primary renter of the vehicle. M r. Kokinda told

Sergeant Cook that he had no criminal history; but Sergeant Cook soon learned

from a background check that M r. Kokinda had a prior drug-related conviction in

Pennsylvania which included a weapons charge. His suspicions aroused, Sergeant

Cook asked M r. Kokinda if he could search his vehicle. M r. Kokinda refused,

telling the Sergeant that he had previously had a bad experience by letting a

law-enforcement officer search his car.

      Sergeant Cook called a canine officer, Deputy Kevin Johnson, to the scene

so that a drug sniff test could be conducted around the exterior of M r. Kokinda’s

vehicle. During the test, the drug detection dog jumped through the open front

driver’s side window and indicated that he had detected drugs in the back of the

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vehicle. The vehicle was searched and the marijuana was found. Following his

conviction and the affirmance of that conviction by the Oklahoma Court of

Criminal Appeals, M r. Kokinda filed his habeas corpus petition in federal district

court.

                                       ANALYSIS

         Under 28 U.S.C. § 2254(a):

         The Supreme Court, a Justice thereof, a circuit judge, or a district
         court shall entertain an application for a writ of habeas corpus in
         behalf of a person in custody pursuant to the judgment of a State
         court only on the ground that he is in custody in violation of the
         Constitution or laws or treaties of the U nited States.

Under 28 U.S.C. § 2253(c)(2) an appeal may not be taken from the final order in

a habeas corpus proceeding unless a COA is issued pursuant to “a substantial

showing of the denial of a constitutional right.” As noted above, we have

previously granted a certificate of appealability (COA) to M r. Kokinda in regard

to his ineffective assistance of counsel claim. W e deny his application for COA

as to his Fourth Amendment claim because M r. Kokinda has made no argument

that the district court erred in determining that he had been provided a

opportunity for “full and fair consideration” of that claim in the Oklahoma courts

under Stone v. Powell, 428 U.S. 465, 486 (1976). The arguments he raises on

appeal regarding his Fourth Amendment claim are the same that the Oklahoma

trial and appellate courts have previously grappled with.




                                            -4-
      W e therefore turn to M r. Kokinda’s Sixth Amendment ineffective

assistance of counsel claim. The parties do not dispute that M r. Kokinda never

raised an ineffective assistance of counsel claim in any state court proceeding.

Under § 2254(b)(1), a habeas corpus petition may not be granted unless the

petitioner has exhausted his state court remedies regarding the claims in the

petition. But under § 2254(b)(2) “[a]n application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.” As to the standard that

should be applied in determining whether to deny on the merits a habeas corpus

petition based on an unexhausted claim, this court has held that “‘if the court of

appeals is convinced that the petition has no merit, a belated application of the

exhaustion rule might simply require useless litigation in the state courts.’”

M oore v. Schoeman, 288 F.3d 1231, 1234 (10th Cir. 2002) (quoting Hoxsie v.

Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997)) (emphasis in original). As will be

discussed in detail below, both the magistrate judge and the district judge

determined that M r. Kokinda’s ineffective assistance of counsel claim had no

merit under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984),

although apparently for different reasons.

      To establish ineffective assistance of counsel, a petitioner must prove
      that counsel’s performance was constitutionally deficient and that
      counsel’s deficient performance prejudiced the defense. To carry his
      burden under Strickland’s performance prong, [a petitioner] must
      demonstrate his counsel committed serious errors in light of

                                         -5-
      prevailing professional norms such that his legal representation fell
      below an objective standard of reasonableness. In so doing, [a
      petitioner] must overcome the presumption that counsel’s conduct
      was not constitutionally defective.

Cannon v. Gibson, 259 F.3d 1253, 1273 (10th Cir. 2001) (citations and internal

quotation marks omitted). “Taken together, Strickland’s performance and

prejudice inquiries provide the following benchmark for judging a claim of

ineffective assistance: ‘whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.’” Id. (quoting Strickland, 466 U.S. at 686).

      If the state court did not decide a claim on the merits, and it is not
      otherwise procedurally barred, we review the district court’s legal
      conclusions de novo and its factual findings, if any, for clear error.
      However, when the district court’s findings of fact are based merely
      on a review of the state record, we do not give them the benefit of
      the clearly erroneous standard but instead conduct an independent
      review .

Young v. Sirmons, 486 F.3d 655, 663 (10th Cir. 2007) (citations, internal

quotation marks, and ellipsis omitted).

      M r. Kokinda claimed in his petition that his Sixth Amendment right to

effective assistance of counsel was violated because “his Appellate Counsel failed

to argue whether the drug dog’s jumping into Petitioner’s vehicle through the

driver’s side window constituted an unreasonable search and seizure affected [sic]

by the police.” R., Doc. 1 at 4. As to the search by the drug dog, M r. Kokinda

alleged that “[t]he dog was permitted, or encouraged, to jump into the vehicle



                                          -6-
through an open window–without [the officer] first obtaining a warrant.” Id., at

3. M r. Kokinda also alleged:

      W hile there is no evidence in the record that the dog handler did
      anything to encourage the dog to jump through the open window, the
      handler would hardly admit that he had so little control of the ‘highly
      trained canine’ as to have allowed the dog to have done so of its own
      volition.

Id. at 5. M r. Kokinda alleged that “the dog’s leap inside Petitioner’s vehicle did

constitute a Fourth Amendment violation, because by the Officer directing

Petitioner to roll down his window, and later by the same officer pulling him from

the vehicle, the officer gave the dog access by causing the window to be opened.”

Id. In response to an inquiry on his form petition as to why he did not exhaust his

state court remedies as to his claim, M r. Kokinda wrote: “Ineffective assistance

of appellate counsel. As omitting such a clear violation of Petitioner’s

Constitutional rights cannot be deemed ‘strategy’ – simply to go ‘Fast Track’

before the appellate court.” Id. M r. Kokinda gave the exact same answer to an

inquiry of why the issue was not raised on direct appeal. Id. at 6.

      The government filed a motion to dismiss M r. Kokinda’s petition, arguing

that while he had properly exhausted his state court remedies as to his Fourth

Amendment claim, he had not done so as to his ineffective assistance of appellate

counsel claim. It argued that the proper course of action was to dismiss the entire

petition without prejudice in order to permit M r. Kokinda to exhaust his state

court remedies by filing a state application for post-conviction relief because

                                         -7-
“ineffective assistance of appellate counsel claims . . . cannot be raised on direct

appeal.” Id., Doc. 12 at 4.

      The magistrate judge interpreted M r. Kokinda’s petition as complaining of

ineffective assistance by his counsel on direct appeal:

      In ground two, Petitioner contends that he was denied effective
      assistance of appellate counsel in violation of the Sixth Amendment
      because his appellate counsel failed to assert that an unreasonable
      search and seizure occurred when the officer allowed the drug dog to
      jump into Petitioner’s vehicle through an open w indow without first
      obtaining a warrant.

Id., Doc. 17 at 4. The magistrate judge found it curious that M r. Kokinda alleged

that the argument asserted in his first claim–i.e., that his Fourth Amendment

rights had been violated by the stop and search of his vehicle, including the drug

dog’s entry into his car–had been raised on direct appeal. That assertion directly

contradicted M r. Kokinda’s argument in his second claim that his appellate

counsel was ineffective in failing to raise the first claim on direct appeal. The

magistrate judge held that it was clear from the face of M r. Kokinda’s petition

that his appellate counsel’s failure to argue the issue on appeal did not constitute

ineffective assistance of counsel. The magistrate judge correctly noted that this

court has held in United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989), that

the Fourth Amendment is not implicated when a drug detection dog jumps into a

suspect’s vehicle during a traffic stop if the dog’s actions were instinctual. The

magistrate judge held that M r. Kokinda’s admission in his petition that “there



                                          -8-
[was] no evidence in the record that the dog handler did anything to encourage the

dog to jump through the open window” was therefore dispositive. Id., Doc. 1 at

5. The magistrate judge’s ruling was evidently based on a determination that

there was no reason for M r. Kokinda’s appellate counsel to argue a claim that had

either not been raised at trial or had been unsupported by record evidence. See

Jackson v. Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998) (“It is completely

reasonable, and in fact advisable, for appellate counsel to eliminate weak but

arguable claims and pursue issues on appeal which are more likely to succeed.”).

      The district court, however, arguably interpreted M r. Kokinda’s habeas

petition differently than the magistrate judge. Although the district court held

that it “concur[red] with [the magistrate judge’s] analysis of the issues and

applicable law and adopts his Report and Recommendation,” R., Doc. 20 at 4, it

also determined that M r. Kokinda argued in his petition “that his trial counsel

was ineffective by failing to argue that the search was illegal because it was

effected by a drug dog jumping into the automobile through an open car window.”

Id. at 2 (emphasis added). But the district court determined that the only

objection that M r. Kokinda made to the magistrate judge’s report and

recommendation that was based on ineffective assistance of counsel raised an

entirely new claim.

      M r. Kokinda argued in his objection: “Petitioner is not claiming that

counsel offered inadequate defense at trial – He offered NO DEFENSE.” Id.,

                                         -9-
Doc. 19 at 2. He claimed that of the four witnesses presented by the prosecution,

his trial counsel cross-examined Sergeant Cook, but failed to examine the

detective who questioned M r. Kokinda after his arrest, a witness from the forensic

laboratory, and Deputy Johnson.

      M r. Kokinda then argued for three and a half pages the illegality of his

detention and the eventual search of his vehicle. As to the sniff test by the drug

detection dog, M r. Kokinda noted that Deputy Johnson testified that the dog

“indicate[d]” on the vehicle prior to jumping through the window, because the

dog “had a change of behavior by stopping and putting his nose up in the air

like he w as trying to smell odor, and that’s when he jumped through the

window.” Id. at 7 (emphasis in original). M r. Kokinda argued this testimony was

necessarily untrue because Deputy Johnson had previously testified that his drug

dog was “a passive alert dog, so when he comes to the source of a narcotic odor,

he w ill either sit or lay dow n by the source of the odor.” Id. at 6. M r. Kokinda

argued that it was impossible to tell if Deputy Johnson signaled or encouraged his

dog to jump into the car in any way because his trial counsel failed to

cross-examine the deputy. The district court read M r. Kokinda’s objection as

“assert[ing] that his attorney was ineffective because he offered ‘no defense’ at

the trial,” and not as objecting to the denial of his claim that his trial counsel was

ineffective for failing to argue that the drug dog’s entry into the vehicle amounted

to an unconstitutional search. Id., Doc. 20 at 3. The district court therefore

                                         -10-
refused to consider the argument on the ground that it had not been previously

presented to the magistrate judge. See United States v. Garfinkle, 261 F.3d 1030,

1031 (10th Cir. 2001) (holding that legal theories raised for the first time in an

objection to a magistrate judge’s report and recommendation are deemed waived).

      W e need not determine w hether the magistrate judge or the district court

correctly interpreted M r. Kokinda’s petition. Under either of the interpretations

and analyses presented, affirmance would be required for the reasons set forth

therein. M oreover, affirmance would be required even if we were to read

M r. Kokinda’s petition and objection as both raising and properly preserving a

claim that his trial counsel provided ineffective assistance by failing to argue that

the drug dog’s entry into the vehicle amounted to an unconstitutional search.

      As noted by M r. Kokinda in his objection to the magistrate judge’s report

and recommendation, Deputy Johnson testified that the drug dog had a change of

behavior prior to jumping inside the vehicle. The Deputy testified that as the

drug dog was walking past the front driver’s side door with the open window, he

stopped and put his nose up in the air like he was trying to smell an odor “and

that’s when he jumped through the w indow.” R., Doc. 19 at 7. It is therefore

clear that Deputy Johnson’s testimony was that it appeared to him that the drug

detection dog jumped into the window because he smelled something as he was

passing the driver’s side door. M r. Kokinda has never claimed that he saw

Deputy Johnson give any sort of signal to the drug detection dog to jump into the

                                         -11-
car. Consequently, it was not objectively unreasonable for M r. Kokinda’s trial

counsel to not ask Deputy Johnson if he “encouraged” the drug detection dog to

jump into the vehicle when the answer was clear from previous testimony.

      Since M r. Kokinda’s ineffective assistance of counsel claim must fail under

any of the possible readings of his habeas corpus petition and objection to the

magistrate judge’s report and recommendation, the judgment of the district court

denying M r. K okinda’s petition on the merits is AFFIRMED. 1


                                                    Entered for the Court


                                                    Deanell Reece Tacha
                                                    Chief Circuit Judge




1
      There was no need for an evidentiary hearing in this case.

      28 U.S.C. § 2254(e)(2) prohibits a federal district court from
      conducting an evidentiary hearing on a habeas claim that petitioner
      failed to develop in state court. However, if the petitioner did not fail
      to develop the factual basis of his claim in State court, § 2254(e)(2)
      is not applicable and a federal habeas court should proceed to
      analyze whether a hearing is appropriate or required under
      pre-AEDPA standards. . . . Under pre-AEDPA standards, a petitioner
      is entitled to an evidentiary hearing on the issue of ineffective
      counsel so long as his allegations, if true and not contravened by the
      existing factual record, would entitle him to habeas relief.

Young, 486 F.3d at 679 (citations and ellipses omitted). Here, M r. Kokinda’s
allegations would not entitle him to habeas relief.

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