                         UNITED STATES COURT OF APPEALS
                                     Tenth Circuit
                          Byron White United States Courthouse
                                   1823 Stout Street
                                Denver, Colorado 80294
                                    (303) 844-3157

Patrick J. Fisher, Jr.                                                      Elisabeth A. Shumaker
       Clerk                                                                  Chief Deputy Clerk


                                           July 13, 1999


       TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT

       RE: 98-6230, Dennis v. Scott
           Filed on June 17, 1999

             The Order and Judgment filed in this appeal contains two clerical errors. On
       page 2, the last sentence, which continues to page 3, should read:

               During a conversation with Ms. Thomas, the prosecutor learned that she
               had last seen appellant at his Oklahoma City address not on December
               3 or 4, as her mother previously had reported, but on December 7, the
               date of the victim’s disappearance.

       On page 3, the first full sentence should read:

                No other witness testified to seeing appellant in Oklahoma City on
                December 7.

       A copy of the corrected Order and Judgment is attached.

                                                    Sincerely,
                                                    Patrick Fisher, Clerk of Court

                                                           By:
                                                                 Keith Nelson
                                                                 Deputy Clerk

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

                                                                           JUN 17 1999
                       UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                             FOR THE TENTH CIRCUIT                             Clerk



    LEROY DEAN DENNIS,

                  Petitioner-Appellant,

    v.                                                    No. 98-6230
                                                      (D.C. No. 97-CV-989)
    H.N. SCOTT,                                           (W.D. Okla.)

                  Respondent-Appellee.




                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , 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 Leroy Dean Dennis appeals from the district court’s

order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. We previously granted his application for a certificate of appealability

(COA) concerning his claim of ineffective assistance of counsel. We now affirm

the district court’s denial of his petition.

       Appellant was convicted of first degree murder for the killing of his ex-

wife, Janet Dennis. She disappeared from her Oklahoma City home on the

evening of December 7, 1990. Charred bones including teeth consistent with her

dental x-rays were found two months later on appellant’s ranch in Seiling,

Oklahoma. The prosecution conceded it was unable to establish the exact time,

place or manner of Ms. Dennis’s death; however, it presented a circumstantial

case linking appellant to the murder.

       On Friday afternoon, the last day of its case-in-chief, the prosecution

notified the court that it had surprise testimony to present. This testimony was

from Denise Thomas, a high school girl who lived across the street from

appellant’s Oklahoma City residence. Although the state had endorsed Ms.

Thomas as a witness, the prosecutor maintained that he had only discovered the

true value of her testimony over the lunch hour that day. During a conversation

with Ms. Thomas, the prosecutor learned that she had last seen appellant at his

Oklahoma City address not on December 3 or 4, as her mother previously had


                                               -2-
reported, but on December 7, the date of the victim’s disappearance. No other

witness testified to seeing appellant in Oklahoma City on December 7.

       Appellant’s counsel objected to Ms. Thomas’s testimony on the basis of

unfair surprise. He stated:

       Judge, I know we’re coming to [the end of] Friday, but say we’ve got
       to work Saturday and Sunday to do this would be unfair to us.
       Before she’s even put on, we would ask to have a continuance in
       regard to that based on her.

Trial Tr., Vol. V at 1230-31.

       In spite of counsel’s complaint of unfairness, the court offered a

continuance only until Monday morning at nine o’clock. Appellant’s counsel then

requested a recess so that he and his co-counsel could interview Ms. Thomas.

Counsel stated that once they had interviewed her, he might have “an

announcement” to make to the court.    Id. at 1232.

       After the recess, counsel announced that he and his co-counsel had

interviewed Ms. Thomas during the recess. He stated that Ms. Thomas told him

that she had provided the purportedly new information to the police department

fourteen months prior to trial. On this basis, counsel again requested that her

testimony be disallowed. The court overruled this objection.

       Counsel did not renew his request for a continuance. Ms. Thomas took the

stand. Counsel again requested that the record indicate his strenuous objections

to her testimony.   Id. at 1242. Ms. Thomas testified that she knew appellant, that

                                          -3-
she was familiar with the truck he drove in 1990, and that she had seen him and

his vehicle at his Oklahoma City residence on December 7, 1990, at about three

o’clock p.m. She stated that appellant wore a tan, one piece overall outfit and

that she saw him take something out of his truck. She did not see appellant again

that day, but she noticed his truck parked at the house later that evening at four,

seven and 8:30 p.m. She testified that she knew it was December 7, 1990, when

she saw appellant because she had a rehearsal for a school play that day, and it

was the only such rehearsal that was not during the school day.

      On cross-examination, appellant’s counsel brought up Ms. Thomas’s

mother’s prior statements that Ms. Thomas had seen appellant on December third

and fourth rather than on the seventh. He also obtained an admission from Ms.

Thomas that she did not see appellant’s face when she saw him on the seventh.

      The state rested. Appellant then moved for a mistrial based on Ms.

Thomas’s testimony. The court denied the mistrial, stating:

      [T]he Court granted to the defense that the Court would have
      recessed this matter until nine o’clock Monday morning, giving the
      defense sufficient opportunity and chance to examine the worthiness
      of the testimony of that witness. The defendant did not wish to do
      that and said that they would go ahead.

Id. at 1254.

      The Oklahoma Court of Criminal Appeals rejected appellant’s claims on

direct appeal and in a post-conviction relief proceeding. Appellant thereafter


                                           -4-
brought this action in federal district court alleging ineffective assistance of trial

counsel.

      In the district court, appellant presented new evidence which had not been

presented to the state courts. The most important piece of evidence was an

affidavit from Ms. Thomas’s music teacher. In the affidavit, the teacher stated

that the school play Ms. Thomas referred to was performed on December 13,

1990. There were ten rehearsals for the play and the last rehearsal was on the

date the play was presented, just before it started. Attached to the affidavit was a

purported cover sheet from the play program reflecting the December 13 date.

      Appellant also presented an affidavit from a private investigator who

interviewed Denise Thomas. The investigator obtained information from Ms.

Thomas that the play in question was “Scrooge” and that the rehearsal she

referred to in her trial testimony occurred one hour before the actual production.

      The district court supplemented the record with the music teacher’s

affidavit, but discounted the private investigator’s affidavit because it was based

on hearsay.   1
                  It denied appellant an evidentiary hearing on the ineffectiveness

issue, finding that appellant had failed to develop the factual basis of his claim in

state court and was unable to satisfy the post-AEDPA requirements for an


1
      We need not consider whether the district court improperly failed to
supplement the record with the investigator’s affidavit. Even if the affidavit had
been made part of the record, it would not change the result we reach here.

                                            -5-
evidentiary hearing.     See 28 U.S.C. § 2254(e)(2). The district court also rejected

appellant’s ineffective assistance of counsel claim, finding that he had failed to

show prejudice from his counsel’s alleged ineffectiveness.


      I. Ineffective Assistance Claim

      Appellant contends that his trial attorney was constitutionally ineffective in

several respects. He argues that counsel: should have accepted the trial court’s

offer of a continuance to investigate the testimony of Denise Thomas; should have

investigated her testimony; and should have filed a motion to compel the

prosecution to give the defense a list of witnesses with a summary of their

anticipated testimony.   2



      To establish a claim of ineffective assistance of counsel, appellant must

show both that his counsel’s representation fell below an objective standard of

reasonableness, and that counsel’s deficient performance prejudiced his defense.


2
       The district court did not explicitly consider the third ground, although it is
mentioned in appellant’s habeas petition.       See R., doc. 1 at 7-8 (“Because the
State applied an ‘open file’ policy to the case, trial Counsel neglected to file an
‘Allen Motion,’ which would automatically have required the State to provide a
witness summary of every witness.”) In addition to the grounds identified above,
appellant also raises the following claims of ineffectiveness which he did not
raise in the district court: (1) his attorney failed to call police officers who had
evidence that appellant did not commit any overt act, crime or violent act against
the victim; (2) his attorney failed to conduct evidentiary tests or call witnesses to
rebut the testimony of the prosecution’s expert arson witness. We do not consider
these claims because they are raised for the first time on appeal.      See Oyler v.
Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994).

                                            -6-
See Strickland v. Washington , 466 U.S. 668, 687 (1984). To prove prejudice, he

must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Rogers v. United States , 91 F.3d 1388, 1392 (10th Cir. 1996)

(citations and quotations omitted).

      The issue of whether appellant received ineffective assistance of counsel is

a mixed question of law and fact that we review de novo.      See United States v.

Prows , 118 F.3d 686, 691 (10th Cir. 1997). Having conducted a de novo review

of the state trial record, we agree with the district court that appellant failed to

establish prejudice within the meaning of the    Strickland test. We reach this

conclusion for substantially the reasons stated in the magistrate judge’s report and

recommendation of January 22, 1998.

      We also affirm on the alternate basis that appellant failed to show that his

counsel’s performance fell below an objective standard of reasonableness.

Appellant argues strenuously that his counsel did not take the continuance offered

to him because he did not want to spoil his weekend by working. In an affidavit

filed with the district court, counsel vehemently denies this characterization of his

performance.




                                           -7-
       “A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.”   Strickland , 466 U.S. at 689. The court must

presume that counsel’s conduct “falls within the wide range of reasonable

professional assistance.”   Id.

       It is clear from the record, read in context, that counsel dealt with what he

believed to be unfair surprise by requesting a continuance. As justification for

the continuance, he focused on the unfairness of limiting his investigation and

preparation time to the weekend. Unfortunately for appellant, counsel’s strategic

move did not bear fruit, because the trial court denied the request. We cannot

say, however, that it showed deficient performance on counsel’s part.

       It is unclear what additional efforts counsel made to investigate Denise

Thomas’s testimony prior to and during the defense phase of the trial. In other

aspects, however, counsel amply fulfilled his constitutional duties. He objected

on several occasions to the challenged testimony, and laid the groundwork for

appeal by requesting a mistrial. He interviewed Ms. Thomas and obtained

information that he presented to the court in an effort to have her testimony

excluded in its entirety. On cross examination, he brought out inconsistencies in

Ms. Thomas’s prior statements and obtained from her the admission that she had


                                          -8-
not seen appellant’s face on the day in question. Although he did not uncover the

discrepancy in her chronology, he did present evidence in the defense case that

suggests appellant was not in Oklahoma City at the time specified. Given this

performance, we cannot say that counsel was not functioning as counsel

guaranteed by the Sixth Amendment.       See Strickland , 466 U.S. at 687.

       The district court did not explicitly address appellant’s claim that counsel

was ineffective in failing to file a motion to obtain a pretrial summary of Ms.

Thomas’s testimony.     See Allen v. District Court of Wash. County        , 803 P.2d

1164, 1167 (Okla. Crim. App. 1990) (holding that state is required to disclose

witnesses and give a summary of their testimony upon request).            Counsel

maintained he did not file such a motion because the state maintained an open file

policy. Even if counsel had requested such an          Allen summary, however, it would

have been unlikely to have prevented the harm here. According to the state,

Denise Thomas’s testimony was not available until the very day on which she

testified.

       It is unlikely, moreover, that the trial court denied counsel’s motion to

exclude Ms. Thomas’s testimony simply because he failed to file an           Allen motion.

The prosecution specifically stipulated that         Allen was not a factor to be

considered in determining whether Ms. Thomas could testify.             See Trial Tr., Vol.

V at 1229. We therefore reject appellant’s ineffectiveness claim.


                                               -9-
      II. Evidentiary hearing claim

      Appellant contends that he was entitled to a hearing on his Sixth

Amendment claim. For the following reasons, we deny a COA as to this issue.

      Appellant’s Sixth Amendment claim, as presented in state court, contained

none of the specific factual allegations that he presented in his habeas pleadings.

Appellant did not present either of the two affidavits upon which he relies to the

state courts. Where an applicant has failed to develop the factual basis of his

claim in state court proceedings, the federal courts may only grant him an

evidentiary hearing if

      (A) the claim relies on–

            (i) a new rule of constitutional law, made retroactive to cases
      on collateral review by the Supreme Court, that was previously
      unavailable; or

            (ii) a factual predicate that could not have been previously
      discovered through the exercise of due diligence; and

      (B) the facts underlying the claim would be sufficient to establish by
      clear and convincing evidence that but for constitutional error, no
      reasonable fact finder would have found the applicant guilty of the
      underlying offense.

28 U.S.C. § 2254(e)(2).

      Appellant does not rely on a new rule of constitutional law. Although he

claims to have exercised due diligence to discover the information in the

affidavits, he fails to provide an adequate explanation why he was unable to do so

                                        -10-
during the three-year gap between the affirmance of his conviction on appeal and

the filing of his habeas petition. Finally, he fails to show that the facts underlying

his claim would support a finding that he was actually innocent of the underlying

offense. In short, appellant fails to satisfy any of the post-AEDPA requirements

for an evidentiary hearing. For this reason, he fails to make a “substantial

showing of the denial of a constitutional right” as to his evidentiary hearing issue.

28 U.S.C. § 2253(c)(2).

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED. Appellant’s motion to expand the record is DENIED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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