UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY EUGENE JACKSON,

Petitioner-Appellant,

v.

OKLAHOMA DEPARTMENT OF CORRECTIONS; JAMES A. SHAFFER; GARY CARNALIE, Director of Mansfiled Law Enforcement Center; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

No. 00-5018

ORDER

Filed March 27, 2001

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

This matter is before the court on appellant's petition for rehearing. He argues: (1) that the court should abate this appeal until the Supreme Court reconsiders, in Lee v. Kemna, 213 F.3d 1037 (8th Cir. 2000) (per curiam), cert. granted, ___ S. Ct. ___, 2001 WL 178182 (U.S. Feb. 26, 2001) (No. 00-6933), whether the denial of a motion for a continuance in order to find missing witnesses constitutes a violation of due process; (2) that this court misapprehended the level of prejudice assigned by the Oklahoma courts to the introduction of evidence of prior convictions during the guilt phase of trial, and that his appellate counsel was constitutionally ineffective for not raising the error on direct appeal; (3) that this court applied the wrong standard of review to his ineffective assistance of counsel claim; and (4) that the court misapplied the standard of Jackson v. Virginia, 443 U.S. 307 (1979), to his argument that the evidence was insufficient to support his conviction for possession of marijuana.

We have carefully considered appellant's four arguments for rehearing. We reject his request to abate this appeal until the Supreme Court issues a decision in Lee v. Kemna. Appellant did not demonstrate a reasonable probability that the verdict would have been different if his missing witness had testified, and he therefore did not show prejudice to support his claim of a due process violation. See Manlove v. Tansy, 981 F.2d 473, 478 (10th Cir. 1992).

Appellant's claim that this court misapplied the standard set out in Jackson v. Virginia is also without merit. Jackson holds that evidence is sufficient to support a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319. Oklahoma law allows a defendant to be convicted for constructive possession based on "any . . . circumstance from which possession may be fairly inferred." Staples v. Oklahoma, 528 P.2d 1131, 1134 (Okla. Crim. App. 1974). Under either standard, the evidence of appellant's possession of the marijuana was overwhelming, as it was found under his body and some of his belongings were in the same room.

Therefore, rehearing is denied with respect to the above issues. We grant rehearing with respect to appellant's arguments concerning his ineffective assistance of counsel claim, and address them in an amended order and judgment. The original order and judgment is withdrawn and a copy of the panel's amended order and judgment is attached to this order.

Entered for the Court

Patrick Fisher, Clerk of Court

By:

Keith Nelson

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY EUGENE JACKSON,

Petitioner-Appellant,

v.

OKLAHOMA DEPARTMENT OF CORRECTIONS; JAMES A. SHAFFER; GARY CARNALIE, Director of Mansfiled Law Enforcement Center; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

No. 00-5018

(D.C. No. 97-CV-375-K)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before BRISCOE, ANDERSON, and MURPHY, 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 Larry Eugene Jackson was convicted by a state court jury of possession of marijuana after former conviction of two or more felonies, and possession of drug paraphernalia. He was sentenced by the jury to life imprisonment on the marijuana conviction, and to one year on the drug-paraphernalia conviction. He appeals from the denial of his petition for habeas relief filed under 28 U.S.C. § 2254. A certificate of appealability was granted, counsel was appointed, and the issues have been briefed. We affirm.

Appellant argues on appeal that: (1) the state court unreasonably determined that there was sufficient evidence apart from his non-exclusive access to the bedroom to link him to the .16 grams of marijuana found on the floor of that room, as required to support a conviction for possession in Oklahoma, where there was no proof beyond the fact that appellant was in the room and may have stayed there at times; (2) the state court denied appellant due process by arbitrarily refusing to allow him to reopen his case to present the lone defense witness, who would have testified that appellant did not live at the apartment, and who was present in the courtroom within minutes of when the defense rested and before anything else transpired before the jury; (3) appellant was denied the effective assistance of appellate counsel where appellate counsel did not raise a clear violation of Oklahoma law, which resulted in the jury learning that appellant had a prior marijuana conviction before it determined whether he was guilty of possessing marijuana in this case, proof that was not admissible until the sentencing phase of the trial and that the Oklahoma courts have recognized is inherently prejudicial.

Our standard of review is determined by whether the state courts addressed appellant's claims on their merits or not. If the state courts have not heard a habeas claim on its merits, this court reviews the district court's legal conclusions de novo and its factual findings, if any, for clear error. Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000). If the state courts have addressed a claim on its merits, this court reviews the state court ruling under the standard in 28 U.S.C. § 2254. Id. In order for appellant to secure a writ under § 2254(d), he must show that 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). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). A state court decision is an "unreasonable application" of federal law "if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "Under § 2254(d)(1)'s 'unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.

Appellant's ineffective assistance of counsel claim was not addressed on its merits by the state courts or by the federal district court. We therefore review this claim de novo. See Hale, 227 F.3d at 1309. Appellant must show that his counsel's performance was deficient and that he was prejudiced by counsel's deficiencies. Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant contends that evidence of a prior marijuana conviction was inappropriately introduced at trial, and that his appellate counsel was ineffective for failing to raise the issue on direct appeal. Appellant presents some authority that Oklahoma law calls for reversal when evidence of a prior conviction is presented at trial.

When this court considers whether prejudice has been shown to support a claim of ineffective assistance, however, our focus "must be on the reliability and fairness of the trial itself and the resulting conviction." Newsted v. Gibson, 158 F.3d 1085, 1092 (10th Cir. 1998) (discussing Lockhart v. Fretwell, 506 U.S. 364 (1993)). We do not "simply examine whether the petitioner was likely to obtain a reversal of his conviction or a new trial on appeal." Id. Rather, "'an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.'" Id. (quoting Lockhart, 506 U.S. at 369).

Under this standard, appellant cannot show prejudice. When he was arrested, he was alone in a bedroom where some of his clothes and papers were found, along with drug paraphernalia and a small amount of marijuana on the floor. Based on this evidence, appellant's conviction was fair in spite of evidence of a prior conviction for possession of marijuana. Appellant's claim of prejudice does not go beyond reversible error.

With respect to appellant's other claims, the district court reviewed the evidence presented at trial and determined that appellant had not satisfied the standard set out in § 2254(d). We have reviewed the parties' briefs in light of the record on appeal. We are unpersuaded by appellant's claims of error, and affirm on these issues for substantially the same reasons as those set forth in the district court's thorough January 12, 2000 order.

Appellant's motion to supplement the record is granted. The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge