                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     November 8, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court



 TER RENCE EU G EN E D IX O N ,

          Petitioner - A ppellant,
                                                         No. 06-6188
 v.
                                                  (D.C. No. CIV-05-1176-W )
                                                         (W .D. Okla.)
 SAM CA LBO NE,

          Respondent - Appellee.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.




      Terrence D ixon, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we D EN Y a COA and DISM ISS.

      Dixon challenges his June 13, 2003 conviction, following a jury trial, for

distribution of cocaine. He was sentenced to a term of thirty-three years’


      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
imprisonment. Dixon sought relief on direct and collateral appeal from the

Oklahoma Court of Criminal Appeals (“OCCA”) before bringing this timely

petition in federal court. D ixon advances six grounds for habeas relief: (1) H e

was denied a fair trial because the trial court failed to give a cautionary

eyewitness identification instruction to the jury; (2) The state w ithheld

exculpatory evidence in violation of Brady v. M aryland, 373 U.S. 83 (1963); (3)

The warrantless entry into his home by arresting officers violated the Fourth

A mendm ent; (4) H e received ineffective assistance of trial counsel; (5) He

received ineffective assistance of appellate counsel; and (6) The state knowingly

used perjured testimony.

      Claims one and two w ere heard on direct appeal by the O CCA, and thus a

writ of habeas corpus as to either claim may not issue unless the state court

adjudication “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d). In order to issue a COA as to

any of Dixon’s claims, we must find that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court




                                         -2-
was correct in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000). 1

       W e turn first to Dixon’s claim that his right to a fair trial was impaired by

the trial court’s failure to give a cautionary eyewitness instruction. Dixon was

identified at trial as the seller of cocaine by the undercover officer who made the

purchase. Sergeant Benavides was subject to cross-examination and did not

equivocate in his identification of Dixon as the seller. W e take a highly

deferential view of state jury instructions challenged in a habeas petition, finding

error only when “they are so fundamentally unfair as to deprive petitioner of a

fair trial and to due process of law .” Tyler v. Nelson, 163 F.3d 1222, 1227 (10th

Cir. 1999) (citations and quotations omitted). To prevail on this claim, Dixon

must demonstrate not merely that the trial court should have given the instruction,

but that his trial was rendered fundamentally unfair in the absence of the

instruction. There is no federal case law establishing a constitutional violation on

these facts. 2 Thus, the OCCA cannot be said to have unreasonably applied federal




       1
        The A ntiterrorism and Effective D eath Penalty Act conditions a
petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of
a COA .
       2
        W e have previously held that where an eyewitness identification is “clear
and unequivocal,” and supported by corroborating evidence, the trial court did not
commit abuse of discretion in failing to issue a jury instruction on the possible
infirmities of such an identification. United States v. M cGuire, 200 F.3d 668,
676-77 (10th Cir. 1999).

                                         -3-
law in upholding the trial court’s discretion on this point, nor can Dixon

demonstrate any fundamental unfairness as a result.

      In his second claim, Dixon alleges that the state committed a Brady

violation by failing to produce certain evidence: a piece of paper on which the

cocaine seller wrote his phone number, and photographs taken by the police after

the arrest that may show other people in the house at the time of the sale. To

establish a Brady violation in the context of a habeas petition, Dixon must show

that “(1) the prosecutor suppressed evidence; (2) the evidence was favorable to

the defendant as exculpatory or impeachment evidence; and (3) the evidence was

material.” Gonzales v. M cKune, 247 F.3d 1066, 1075 (10th Cir. 2001), vacated

in part on other grounds, 279 F.3d 922, 924 (10th Cir. 2002). To establish the

evidence was material, Dixon must demonstrate “a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” K nighton v. M ullin, 293 F.3d 1165, 1172 (10th Cir. 2002).

      If he had access to both the paper and the photographs, Dixon argues, he

would have been able to buttress his misidentification defense. In light of Officer

Benavides’ eyewitness identification, however, we are hard-pressed to hold that

the OCCA misapplied federal law in denying Dixon’s Brady claim on appeal.

Further, Dixon thoroughly pursued his misidentification defense at trial, testifying

about both the paper given to Benavides and the photographs taken after the

arrest. The state offered into evidence a photograph of Timothy Dorris, the man

                                         -4-
Dixon argues sold the drugs, to allow the jury to make a comparison. Although

the evidence Dixon alleges w as suppressed might have supported his

misidentification theory, it does not meet the standard for materiality. W e find no

fault in the OCCA’s determination on this point.

      Dixon’s third, fourth, fifth, and sixth claims for relief were defaulted in

state court because Dixon failed to raise them on direct appeal, as required by

Oklahoma’s Post-Conviction Procedure A ct. Okla. St. tit. 22, § 1086. W e are

precluded from reviewing claims defaulted on adequate state procedural grounds

unless Dixon demonstrates “cause and prejudice or a fundamental miscarriage of

justice.” Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004). Because Dixon

does not present evidence sufficient to meet the “cause and prejudice” or

“fundamental miscarriage of justice” standards, we are foreclosed from

considering those claims on the merits. See Cannon v. Gibson, 259 F.3d 1253,

1265-66 (10th Cir. 2001).

      W e have excepted ineffective assistance of counsel claims from the normal

procedural default rules, precluding them “only when ‘trial and appellate counsel

differ’ and the ‘claim can be resolved upon the trial record alone.’” M ullin, 379

F.3d at 926 (quoting English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998)).

Although Dixon’s trial and appellate attorneys were different, a petitioner has not

benefitted from “separate” counsel when both trial and appellate counsel work in

the same Public D efender’s office. Cannon v. M ullin, 383 F.3d 1152, 1173 (10th

                                        -5-
Cir. 2004). In this case Dixon was represented at trial and on appeal by attorneys

from the Oklahoma City Public Defender’s office. Accordingly, we must look to

the merits of Dixon’s claims. See Hickman v. Spears, 160 F.3d 1269, 1273 (10th

Cir. 1998).

      Under the two-part test established by the Court in Strickland v.

W ashington, 466 U.S. 668 (1984), Dixon must prove that “counsel’s

representation fell below an objective standard of reasonableness” and that “any

deficiencies in counsel’s performance [were] prejudicial to the defense.” Id. at

688, 692. W e examine such claims with a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. at

689. In applying the Strickland standard, “we look to the merits of the omitted

issue” in the context of counsel’s overall defense strategy. Neill v. Gibson, 278

F.3d 1044, 1057 (10th Cir. 2001) (quoting Hooks v. W ard, 184 F.3d 1206, 1221

(10th Cir. 1999)). Further deference is credited to the OCCA under A EDPA, in

that we grant relief only if the OCCA unreasonably applied the Strickland

standard. 28 U.S.C. § 2254(d)(1).

      The first issue Dixon points to is his appellate counsel’s failure to argue

that the arresting officers lacked probable cause to enter his home and arrest him. 3

      3
       It is unclear whether counsel’s alleged ineffectiveness in failing to
challenge the arrest and search is limited to appellate counsel or extends to
Dixon’s trial counsel as well. In Dixon’s brief in support of his state petition for
post-conviction relief, he argued that trial counsel “failed to challenge this error
                                                                        (continued...)

                                        -6-
Specifically, Dixon alleges that because the arresting officers had no cause to

make a warrantless entry into his home, counsel should have moved to exclude

any evidence obtained pursuant to that search. As noted in the m agistrate judge’s

report, had appellate counsel raised this issue, the OCCA would have limited its

review to plain error in light of trial counsel’s failure to object at trial. See

M itchell v. State, 136 P.3d 671, 696 (Okla. Crim. App. 2006). Although we have

not examined the validity of arrests made following a “bust” signal given by an

undercover agent invited into a home to complete a drug purchase, other circuits

have found that warrantless entries by arresting officers under similar

circumstances do not violate the Fourth Amendment. See United States v. Janik,

723 F.2d 537, 548 (7th Cir. 1983); United States v. Bramble, 103 F.3d 1475, 1478

(9th Cir. 1996). Dixon cites no case law in his brief that would have led his trial

or appellate counsel to believe Dixon’s Fourth Amendment rights were violated or

that a motion to suppress would have been sustained. As a result, we determine

that the OCCA did not misapply Strickland in dismissing Dixon’s ineffective

assistance of counsel claim on this issue.




      3
       (...continued)
properly.” Because there is no evidence in the record indicating the arrest
violated the Fourth Amendment, we are not required to distinguish between the
two as to this underlying issue. To the extent that Dixon’s ineffective assistance
of counsel claim incorporates the first and second claims in this petition, there
was no constitutional error on those claims, and hence neither trial nor appellate
counsel were ineffective in failing to raise those issues.

                                          -7-
      Dixon finally argues that his appellate counsel was ineffective in failing to

challenge the prosecution’s presentation of perjured testimony. In his brief to this

Court, Dixon does not specify which testimony was perjured, or adduce any

evidence of perjury beyond his facial claim. Even construing his claim liberally

and referencing his brief to the district court on this issue, Dixon’s allegation that

the testimony of Officers Benavides and Carter was inconsistent with their earlier

statements does not provide us with adequate guidance to address his perjury

claim. Consequently, we are precluded from finding that the OCCA misapplied

Strickland as to this underlying issue.

      Dixon’s request for a COA is DENIED and his petition is DISM ISSED.

Because we conclude that Dixon presents a “reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal,” M cIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted), we

G R A N T his motion to proceed on appeal in forma pauperis.



                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




                                           -8-
