                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            June 6, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

    DEREK KYLE FREEMAN,

                 Petitioner - Appellant,
                                                          No. 04-6008
     v.                                             (D.C. No. 02-CV-863-HE)
                                                          (W.D. Okla.)
    JOHN GRUBBS, Warden; THE
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                 Respondents - Appellees.




                              ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and ANDERSON , Circuit Judges.



          State prisoner Derek Kyle Freeman appeals the federal district court’s

denial of his petition for habeas corpus relief filed under 28 U.S.C. § 2254. Upon

jury trial, Freeman was convicted in Oklahoma state court of first-degree


*
        This order and judgment is not binding precedent, except under the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.
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.
manslaughter, unlawful possession of a controlled substance and unlawful

possession of drug paraphernalia. He was sentenced to twenty years, ten years

and one year of imprisonment, respectively. On direct appeal he argued, among

other things, that (1) the State’s failure to arrest him before taking a blood sample

rendered the sample and its test results inadmissible under Okla. Stat. tit. 47,

§ 751, and admission of the evidence violated his constitutional rights;

(2) admission of various testimony violated the physician-patient privilege and

denied him due process and a fair trial; and (3) cumulative error denied him due

process and a fair trial. The Oklahoma Court of Criminal Appeals (OCCA)

rejected these arguments and summarily affirmed Freeman’s convictions and

sentences. In post-conviction proceedings, the state court modified Freeman’s

sentence by suspending the sentences imposed for the possession offenses. The

OCCA affirmed.

       Freeman then sought federal habeas corpus relief, raising the same

arguments he raised in his direct appeal.   The federal district court, adopting the

magistrate judge’s recommendation, denied habeas relief. The district court also

denied Freeman’s request for a certificate of appealability (COA). We granted a

COA on only three of the issues Freeman sought to assert on appeal: (1) Did the

presence of two officers in the emergency room during Freeman’s medical

treatment result in the unauthorized taking of his blood? (2) Were Freeman’s


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constitutional rights violated by the admission of statements he made to medical

personnel? and (3) Was there cumulative error? Exercising jurisdiction under 28

U.S.C. §§ 1291 and 2253, we     AFFIRM the denial of habeas relief.

       The incidents leading to Freeman’s arrest began about 9:00 p.m. on

March 16, 1998, when Freeman was driving a vehicle that crossed the center line

of a Norman, Oklahoma street and collided head-on with another vehicle driven

by the victim, Elizabeth Boyls. Freeman was unconscious for about ten minutes

after the accident, and Boyls was also unconscious and injured. Both were

transported by ambulance to Norman Regional Hospital, with Freeman riding in

the front seat of the ambulance. Boyls later died from a heart rupture caused by

the impact of the accident.

       Norman Police Officers Paul Swanner and Matthew Hart met the

ambulance at the hospital. The officers testified   that, when the ambulance

arrived, they saw Freeman make motions with his hands suggesting he was

putting something down his pants. When asked what he was doing, Freeman

replied that he was taking off his seat belt. When Freeman got out of the

ambulance, the officers observed that he was unsteady on his feet, was

unresponsive to their questions, had a distant look in his eyes, and spoke in a

thick and gravelly voice. Believing that he was under the influence of

intoxicants, and in light of the serious nature of the accident, the officers decided


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to obtain a blood sample for analysis.

      While Officer Hart was out of the room, Officer Swanner read Freeman the

Implied Consent Test Request. The request advised Freeman that he had been

arrested and that the arresting officer believed that he had been under the

influence of intoxicants when operating his motor vehicle. The form used also

requested Freeman’s agreement to submit to a test for the presence of intoxicants

and specifically precluded him from consulting with a lawyer before deciding

whether to take the test. It further informed Freeman that failure to consent

would result in revocation of his driver’s license. After hearing the entire Implied

Consent Test Request read to him, Freeman agreed to the blood test. The blood

tests later showed both morphine and methadone in Freeman’s blood.

      Officer Swanner testified that Freeman’s blood was drawn at 10:48 p.m.

When Officer Hart returned to the room, he filled out the Oklahoma Department

of Public Safety form concerning the blood test, noting a later arrest time of

10:54 p.m. At trial, Officer Swanner could not explain the time discrepancy.

However, Officer Hart testified that he noted the arrest time after consulting his

watch and that Officer Swanner had told him that he had already read the Implied

Consent Test Request to Freeman.

      After Freeman had agreed to take the test, Nurse Brigitte Squyres was

preparing to draw Freeman’s blood when she noticed marks on Freeman’s arm.


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On questioning by her, he admitted to prior drug use, as recently as a year before.

Nurse Squyres also noticed Freeman had slurred speech and reacted slowly to her

questions. When she asked him to disrobe, she observed that he became nervous

and agitated. When Freeman removed his underwear, two syringes and a Tic-Tac

container containing fourteen morphine tablets fell out. Officer Swanner took

possession of these items, as well as a spoon, cotton balls and a green pill found

in Freeman’s clothing.

      Eventually, Freeman admitted to Nurse Squyres that he was on morphine,

and he told another nurse, Bryan O’Rourke, that he had injected opium. Nurse

O’Rourke believed that Freeman was intoxicated because of the appearance of his

eyes, his slow functioning, his slow or slurred speech, and his intermittent

incoherence.

      At 1:00 a.m., during a break in Freeman’s medical treatment, Officer

Swanner read Freeman his   Miranda 1 rights. Freeman then agreed to discuss the

accident and later gave a written statement. His statement indicated that earlier

that day, he had purchased morphine and had injected eighty-five milligrams of

the drug. He also stated that he had slept only five hours in the prior three days

and admitted that due to his lack of sleep he had had difficulty staying awake

while he was driving his vehicle that night, that he had faded out, that he had


1
      Miranda v. Arizona , 384 U.S. 436 (1966).

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drifted across the center line, and that he had awakened only after the accident

had occurred.

       If a claim is adjudicated on the merits in state court, we grant habeas relief

only if the state-court decision was “contrary to, or involved an unreasonable

application of, clearly established” Supreme Court precedent or “resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1),

(2). Federal courts presume that state court factual findings are correct, and place

the burden on the petitioner to rebut that presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). If the state court did not decide a claim on its

merits, a federal appellate court reviews the district court’s legal conclusions de

novo and its factual findings for clear error.       Darks v. Mullin , 327 F.3d 1001,

1007 (10th Cir. 2003).

       Before us, Freeman argues that the blood test evidence was inadmissible

under state law because he had not been arrested at the time the blood was drawn.

See Post v. State ex rel. Dep’t of Pub. Safety       , 889 P.2d 1290, 1291-92 (Okla. Ct.

App. 1995) (“Oklahoma law requires, and appellate decisions of this state have

consistently held, a valid arrest is necessary to authorize a police officer to

request submission to chemical tests for blood alcohol.”). He maintains that,

because the affidavit prepared by Officer Hart showed a 10:54 p.m. arrest time, he


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had not actually been arrested at 10:48 p.m. when his blood was drawn. In

addition to the state law argument, Freeman also argues that his due process right

was violated when the State failed to follow its rule requiring an arrest before

taking blood. See Hicks v. Oklahoma , 447 U.S. 343, 346 (1980).

       Federal courts do not grant habeas relief for state-law errors.    Estelle v.

McGuire , 502 U.S. 62, 67 (1991). If a state fails to follow its own rules, the

failure gives rise to habeas relief only if the failure also was a violation of the due

process guaranteed by the Constitution.        Hicks , 447 U.S. at 346. To prove a

denial of due process under     Hicks , a habeas petitioner must show “the deprivation

occasioned by the state’s failure to follow its own law [is] arbitrary in the

constitutional sense; that is, it must shock the judicial conscience.”    Aycox v.

Lytle , 196 F.3d 1174, 1180 (10th Cir. 1999) (quotation omitted).

       On direct criminal appeal, Freeman argued both that admission of the blood

test evidence violated Okla. Stat. tit. 47, § 751 and that it violated his right to due

process. The OCCA denied the claim, finding that Freeman was lawfully arrested

prior to the extraction of his blood for testing.   2




2
        Freeman argues that we should review this claim de novo. We disagree. In
listing the issues, the OCCA recognized that Freeman had raised a constitutional
claim. Although the court did not discuss the constitutional claim specifically
when addressing this issue, its ruling encompasses it, and we still give deference
to its decision. See Paine v. Massie , 339 F.3d 1194, 1198 (10th Cir. 2003) (“Even
if a state court resolves a claim in a summary fashion with little or no reasoning,
                                                                        (continued...)

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      We conclude that there was no due process violation. In order to prevail on

his habeas claim, Freeman must show by clear and convincing evidence that the

OCCA’s factual determination that he was arrested prior to his blood draw was in

error. § 2254(e)(1). To the contrary, in his appellate brief’s statement of facts,

Freeman acknowledges the following sequence of events. Nurse Squyres went to

get the blood kit, Officer Swanner read the Implied Consent Test Request,

Freeman consented to the blood draw, and Nurse Squyres drew his blood. The

Implied Consent Test Request, which was read to Freeman, clearly stated that he

was under arrest. In light of Officer Hart’s testimony that he noted the arrest time

by looking at his watch after his return to the ER bay and after Officer Swanner

had read the Implied Consent Test Request to Freeman, the record evidence does

not support a conclusion that OCCA’s factual finding is in error. Furthermore,

Freeman does not argue that his blood was drawn before Officer Swanner read the

Implied Consent Test Request or before he had actually given his consent.

Because the record shows that Freeman was arrested before his blood was drawn



2
 (...continued)
we owe deference to the state court’s result.”);    Cook v. McKune , 323 F.3d 825,
831 (10th Cir. 2003) (recognizing federal courts give deference to state-court
decisions even if state court did not discuss and may not have been aware of
Supreme Court precedent; relying on Early v. Packer , 537 U.S. 3, 8 (2002) (per
curiam)). Even if we were to conclude that the OCCA did not address the
constitutional claim on its merits, on de novo review,    see Darks , 327 F.3d at
1012, we would still affirm.

                                          8
and because there was no failure of the State to follow its own rules, there was no

due process violation.   See generally Schmerber v. California , 384 U.S. 757, 768-

70 (1966) (concluding police were justified in requiring person to submit to blood

test because person was under arrest and circumstances indicated likelihood of

success of test for alcohol). Accordingly, we conclude the OCCA’s decision was

not contrary to or an unreasonable application of Supreme Court precedent; nor

was it based on an unreasonable determination of the facts in light of the evidence

presented. See 28 U.S.C. § 2254(d)(1), (2).

      Freeman also argues to us that his statements were protected by the

physician/patient privilege set forth in Okla. Stat. tit. 12, § 2503 and that their

admission violated his constitutional right to due process. He maintains that his

constitutional rights were violated because, although he made statements in the

officers’ presence, he had never consented to their presence, but had merely

acquiesced because he had no choice in order to obtain medical treatment.

      The OCCA rejected this argument. The court found that Freeman’s

statements to the nurses were not privileged communications under Okla. Stat. tit.

12, § 2503. Citing § 2503(A)(4), the court found that, because Freeman made the

statements in the presence of officers who clearly were not involved in the

medical diagnosis or treatment, Freeman did not intend for his comments to be

confidential. Lastly, the court found that the nurses’ testimony about Freeman’s


                                           9
demeanor was properly admitted and relevant to the intoxication issue.    3



       “[S]tate court rulings on the admissibility of evidence may not be

questioned in federal habeas proceedings unless they render the trial so

fundamentally unfair as to constitute a denial of federal constitutional rights.”

Walker v. Gibson , 228 F.3d 1217, 1239 (10th Cir. 2000) (quotation omitted),

overruled on other grounds by     Neill v. Gibson , 278 F.3d 1044, 1057 n.5 (10th Cir.

2001). Nothing in the record indicates Freeman was deprived of a fair trial. He

knew of the officer’s presence, but he did not ask them to leave before making his

statements or indicate that his statements were being made in confidence.

       As for Freeman’s argument that he has a due process right to have the state

courts follow state procedural and substantive rules,    see Hicks , 447 U.S. at 346,

because there was no violation of state rules, it follows that there was no violation

of his due process rights. Accordingly, we conclude Freeman cannot show by

clearly established Supreme Court precedent that admission of his statements

resulted in any fundamental unfairness or denied him due process of law.

       Finally, Freeman argues that the cumulative errors in this case denied him a



3
       Freeman also argues that this claim should be reviewed de novo. Again, we
disagree. The OCCA recognized that Freeman raised a constitutional claim.
Because that court found no state-law error, it follows that the court decided there
could be no constitutional error. Under these circumstances,   see n.2 supra , we
give deference to the OCCA’s decision. But even if we were to review de novo,
we would affirm.

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fundamentally fair proceeding and due process. Finding no individual error, the

OCCA decided there can be no accumulation of error. “A cumulative-error

analysis merely aggregates all the errors that individually have been found to be

harmless, and therefore not reversible, and it analyzes whether their cumulative

effect on the outcome of the trial is such that collectively they can no longer be

determined to be harmless.”     United States v. Rivera , 900 F.2d 1462, 1470

(10th Cir. 1990). “Cumulative error analysis applies where there are two or more

actual errors; it does not apply to the cumulative effect of non-errors.”   Moore v.

Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1998). Because there was no error, the

OCCA’s conclusion that there was no cumulative error was not contrary to or an

unreasonable application of Supreme Court precedent.

       The judgment of the district court is        AFFIRMED .



                                                         Entered for the Court



                                                         Carlos F. Lucero
                                                         Circuit Judge




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