                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 12 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CLETIS O’QUINN,

                Petitioner-Appellant,

    v.                                                   No. 98-3277
                                                   (D.C. No. 94-3447-GTV)
    STATE OF KANSAS,                                      (D. Kan.)

                Respondent-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , 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.




*
      This order and judgment is not binding precedent, except under the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.
       Petitioner-appellant Cletis R. O’Quinn appeals the district court’s denial of

his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. As

petitioner has not made a substantial showing of the denial of a federal right, we

deny his application for a certificate of probable cause   1
                                                               and dismiss the appeal.

       Some time after midnight on September 8, 1989, a convenience store clerk

in Wichita, Kansas, was sexually assaulted, battered, and cut with a knife.

Petitioner’s first trial for these crimes in March 1990 resulted in a mistrial.

Petitioner’s attorney withdrew, and attorney Moore was hired to represent

petitioner in the second prosecution, which was scheduled to begin on May 14,

1990. Because Moore was in failing health, attorney Dunn was brought into the

case to assist Moore.

       On May 11, 1990, Moore was hospitalized. Dunn asked for a ten-day to

two-week continuance, arguing he was not sufficiently prepared to take over as

lead counsel. The district court denied the motion, but postponed the trial for two

days, giving Dunn five days to prepare. After a two-day trial, petitioner was



1
      Because petitioner filed his petition for a writ of habeas corpus on
November 1, 1994, well before the April 24, 1996 enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), he is not subject to the
AEDPA’s requirement that he obtain a certificate of appealability. He is,
however, subject to the pre-AEDPA requirement that he obtain a certificate of
probable cause, by making a substantial showing of the denial of a federal right.
See Barefoot v. Estelle , 463 U.S. 880, 892-93 (1983).


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convicted of aggravated kidnaping, aggravated battery, and aggravated sexual

battery. The Kansas Supreme Court affirmed his conviction in October 1991.

       Petitioner brought an action for post-conviction relief in the state court,

alleging Dunn’s representation in the second trial was ineffective. A hearing was

held before the judge that presided over the second prosecution, in which

testimony was taken from Dunn, the criminal prosecutor, petitioner, and attorney

Moore’s widow. The state court found petitioner had received effective

assistance, and the Kansas Court of Appeals affirmed on March 18, 1994.

       Petitioner filed for federal habeas relief on November 1, 1994, claiming

(1) his attorney was ineffective; (2) police used an unduly suggestive procedure to

identify him; (3) there was no physical evidence linking petitioner to the crime;

(4) the prosecution used perjured testimony; and (5) the prosecution failed to

disclose exculpatory evidence. The district court held petitioner did not exhaust

claims 4 and 5, but that they were legally frivolous.   See R. doc. 20. Petitioner

does not challenge this order on appeal.

       In a detailed decision, the district court found that petitioner’s counsel was

not ineffective, and that in light of the overwhelming evidence, petitioner had not

shown that any of his alleged errors were prejudicial. Petitioner appeals from this

decision, arguing Dunn’s failure to obtain the transcript of the previous trial and

his failure to cross-examine the victim were ineffective assistance. He also


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challenges the district court’s failure to rule on his identification and physical

evidence claims.

       To establish ineffective assistance of counsel, petitioner must show both

that Dunn’s representation fell outside the bounds of reasonableness and that

petitioner was prejudiced thereby.   See Strickland v. Washington , 466 U.S. 668,

687-88 (1984). To show unreasonable representation, petitioner must overcome

the presumption that his attorney’s decision “might be considered sound trial

strategy, id. at 689 (further quotations omitted), and to show prejudice, he must

demonstrate a reasonable probability that the outcome would have been different,

see id. at 694. We conclude neither of these requirements have been met.

       Petitioner has not shown that Dunn failed to obtain the transcript from the

first trial, and, in fact, there are indications that Dunn may have had the entire

transcript. See, e.g. , Nov. 9, 1992 Trial Trans. at 44-47, 69-70, 77. At a

minimum, there is evidence that Dunn had the testimony of the victim and of

Detective Clark, and that he used them for impeachment.      See May 11, 1990

Suppression Hrg. at 14 (Dunn’s reference to victim’s testimony in first trial);

May 17, 1990 Trial Trans., Vol. II at 133-34 (Dunn’s reference to Clark’s prior

testimony). The fact that Dunn had portions of the transcript demonstrates that

any decision not to order the rest was tactical. We note the prosecution’s request

was similarly limited.   See Nov. 9, 1992 Trial Trans. at 94-95.


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       Dunn also made a tactical decision not to cross-examine the victim because

her testimony and presentation were so compelling.          See id. at 77-78. At the state

post-conviction hearing, the prosecutor described this decision as “a very wise

move.” Id. at 113. Petitioner has not shown that Dunn’s decisions exceeded the

bounds of reasonable representation.

       Petitioner also has not shown that he was prejudiced by the alleged failure

to order certain parts of the transcript or the decision not to cross-examine the

victim. As noted by the prosecutor, Dunn succeeded in collaterally impeaching

the victim through the testimony of others.         See id. at 113-14; see also May 17,

1990 Trial Trans. Vol. II at 132-33 (testimony through Clark that victim was in

pain and possibly under medication when she identified petitioner, and that she

told police assailant drove a 4x4). After reviewing the transcripts from both

trials, we agree with the district court that the evidence of guilt was

overwhelming, and that any alleged error in cross-examination was not

prejudicial.

       Finally, petitioner has not made a substantial showing that the identification

procedure used was so suggestive as to taint his trial, especially in light of the

victim’s testimony at the suppression hearing,        see May 11, 1990 Suppression Hrg.

Trans. at 12-14 (testifying she didn’t notice the numbers on the pictures and

demonstrating she did not recognize petitioner’s “orange shirt” as a jail uniform),


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or that he had a federal right to be connected to the crime with physical evidence

from his body when there was strong eyewitness testimony and physical evidence

corroborating testimony about his clothing and vehicle.

      Petitioner’s application for a certificate of probable cause is DENIED and

the appeal is DISMISSED. The mandate shall issue forthwith.




                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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