                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            OCT 6 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    WILLARD KEITH CUDJO,

                Petitioner-Appellant,

    v.                                                    No. 99-7083
                                                    (D.C. No. 97-CIV-608-B)
    RON J. WARD, Warden,                                  (E.D. Okla.)

                Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before TACHA , EBEL , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.

The magistrate judge recommended that the petition be denied, and petitioner



*
      This order and judgment is not binding precedent, except under the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.
filed objections. With one minor notation, the district court adopted the

magistrate judge’s recommendation, denied the petition, and declined to grant

a certificate of appealability (COA). We deny petitioner’s application to this

court for a COA and dismiss the appeal.

      Petitioner was convicted, following a jury trial, of Conspiracy to Commit

Robbery by Force or Fear (Count I), Robbery With a Dangerous Weapon (Count

II), and First Degree Malice Aforethought Murder (Count III), for which he

received sentences of ten years, seventy-five years, and death, respectively.

On appeal, the convictions and sentences were affirmed as to Counts I & II and

the conviction on Count III. Finding plain error in the imposition of the death

penalty, the Oklahoma Court of Criminal Appeals modified that sentence to life

imprisonment without parole.   See Cudjo v. State , 925 P.2d 895 (Okla. Crim.

App. 1996). Petitioner’s subsequent application for post-conviction relief was

denied. See Cudjo v. State , No. PC-97-958 (Okla. Crim. App. Sept. 12, 1997).

He then filed this application for a writ of habeas corpus, raising the following

claims:

      1.     The information failed to properly allege elements of the
             offense of first degree murder under the law in effect at the
             time of the offense;

      2.     The evidence was insufficient to support the convictions for
             robbery with a dangerous weapon and for first degree murder;
      3.     Petitioner was denied the effective assistance of trial and
             appellate counsel;

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      4.     Petitioner’s arrest and search were predicated on invalid
             warrants not supported by probable cause;

      5.     The evidence was insufficient to support the conviction for
             conspiracy to commit robbery by force or fear; and

      6.     The admission of other crimes evidence was prejudicial error
             in violation of the state and federal constitutions.

      The State concedes that petitioner has exhausted his state remedies on these

issues.

      In well-reasoned findings and recommendation, adopted by the district

court, the magistrate judge recommended that relief be denied and the habeas

action dismissed. On appeal, petitioner continues to urge the claims addressed

and decided by the district court.

      Petitioner first claims that the information in his case was insufficient

because it “failed to allege the elements of the offense of First Degree Murder

and failed to inform [him] of the theory of homicide upon which the State would

rely.” Cudjo , 925 P.2d at 897. The Oklahoma Court of Criminal Appeals

carefully reviewed this claim in light of the trial record and determined that

petitioner received adequate notice of the charge against him and that he

understood he was charged with malice aforethought murder.          See id. at 898.

In addition, the Oklahoma cases he relies on have been overruled.       See Parker v.

State , 917 P.2d 980, 986 and n.4 (Okla. Crim. App. 1996) (overruling earlier


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cases holding that to confer jurisdiction on a trial court, information must allege

all elements of crime charged). Finally, although he argues generally that the

information was defective,    see Appellant’s Br. at 1-5, he does not take issue with

the state court’s determination that he had sufficient notice of the charge against

him based on the “‘four corners’ of the Information together with all of the

materials that were made available to [petitioner] at preliminary hearing and

through discovery” and that during closing argument defense counsel had

acknowledged that both counsel and petitioner “understood the charges they were

there to defend against.”    Cudjo , 925 P.2d at 898 and n.1. This claim is therefore

without merit.

       Next, petitioner contends that the evidence was insufficient to support the

convictions for robbery with a dangerous weapon and for murder in the first

degree. This claim was thoroughly analyzed by the Oklahoma Court of Criminal

Appeals under the constitutional standard of      Jackson v. Virginia , 443 U.S. 307

(1979). See Cudjo , 925 P.2d at 899-901. Habeas corpus relief is proper only

when the state court’s adjudication of a claim has resulted in a decision contrary

to or involving an unreasonable application of clearly established federal law or

resulted in a decision based on an unreasonable determination of the facts in light

of the evidence presented in state court.      See 28 U.S.C. § 2254(d). Petitioner

simply reargues his version of the facts.      See Appellant’s Br. at 6-14. This is


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insufficient to meet the requirements of § 2254(d). Under        Jackson , the evidence

must be viewed in the light most favorable to the prosecution.       See Jackson , 443

U.S. at 319.

      Petitioner further contends he was denied the effective assistance of

trial and appellate counsel. This issue was raised in state court by way of the

post-conviction proceeding. Specifically, petitioner claims that trial and appellate

counsel should have raised his last three issues, i.e., the invalidity of the search

and arrest warrants, insufficiency of the evidence to support the conviction for

conspiracy to commit a robbery by force or fear, and admission of other crimes

evidence amounting to prejudicial error.

      The Oklahoma Court of Criminal Appeals found the substantive issues to

be procedurally barred under Okla. Stat. tit. 22, § 1086 because they were not

raised on direct appeal. The court further determined that appellate counsel was

not ineffective, particularly in view of the fact that the direct appeal successfully

challenged the death penalty. The court considered petitioner’s claims in light of

the requirements of Strickland v. Washington , 466 U.S. 668 (1984), which

requires a showing that counsel’s performance was deficient and that the deficient

performance prejudiced the defense.     See id. at 687.

      The district court affirmed the magistrate judge’s determination that the

Court of Criminal Appeals correctly applied the     Strickland standard and that


                                           -5-
under § 2254(d) petitioner was not entitled to habeas corpus relief. The court also

noted that petitioner had made a general claim of actual innocence,    see R. Doc. 2

at 55-56, but had failed to support this allegation with a “colorable showing of

factual innocence.”    See Herrera v. Collins , 506 U.S. 390, 404 (1993) (further

quotations omitted). We agree with the district court’s conclusion that petitioner

has failed to make such a showing.

       A petitioner may not appeal the denial of a § 2254 petition unless a circuit

justice or judge issues a COA.    See 28 U.S.C. § 2253(c)(1)(A). A COA “may

issue . . . only if the applicant has made a substantial showing of the denial of

a constitutional right.”   Id. , § 2253(c)(2). Upon review of the record and brief,

along with the magistrate judge’s findings and recommendation and the district

court’s order, we deny the COA for substantially the reasons set forth in the

magistrate judge’s findings and recommendation.

       Application for COA DENIED; appeal DISMISSED.


                                                       Entered for the Court


                                                       Deanell Reece Tacha
                                                       Circuit Judge




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