Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JUN 12 2001
PATRICK FISHER
Clerk
LEONARD RENAL ROBERTS,

Petitioner,
v.
RONALD J. CHAMPION,
No. 00-5085
(D.C. No. 97-CV-305-BU)
(N.D. Okla.)
Respondent.
ORDER AND JUDGMENT
Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.
Pursuant to 28 U.S.C. 2253(c), we previously granted petitioner a

certificate of appealability (COA) on the issue of whether his appellate counsel
was ineffective in failing to challenge on direct appeal the trial courts instruction
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
to the jury that petitioner was presumed not guilty, rather than innocent.
The parties have briefed this issue, and we now address the merits.
Petitioner was convicted of larceny in Tulsa County District Court.
Petitioner filed a direct appeal in the Oklahoma Court of Criminal Appeals
(OCCA), and the OCCA affirmed petitioners conviction, but reduced his
sentence. Petitioner filed his opening brief on direct appeal on April 20, 1994,
and the OCCA affirmed his conviction on August 25, 1995. In the interim, on
January 24, 1995, the OCCA issued its decision in
(Okla. Crim. App. 1995). In
Flores v. State , 896 P.2d 558
Flores , the OCCA held that a jury instruction stating
that a criminal defendant was presumed not guilty, rather than innocent, was
not harmless error, and the court vacated the defendants conviction on direct
appeal. Id. at 560-62. After the OCCA issued its opinion affirming his
conviction, petitioner filed a petition for rehearing arguing that the trial court had
charged the jury in his case with an identical presumed not guilty instruction
and that his conviction must therefore be vacated under
Flores . The OCCA
denied the petition for rehearing on the grounds that the OCCAs procedural rules
did not permit a rehearing on an issue that was not raised in the appellants
opening brief. Petitioner subsequently filed an application for post-conviction
relief in the state district court. The state district court denied petitioners
application, and the OCCA affirmed on appeal.
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On April 2, 1997, petitioner filed his habeas petition under 2254 raising
the Flores issue, claims of ineffective assistance of trial and appellate counsel,
and a number of other issues. The district court denied petitioners habeas
petition in all respects. In his application for a COA, petitioner has reasserted the
issues raised in his 2254 petition. He also claims that the district court erred in
not holding an evidentiary hearing on his petition.
I. Flores and Ineffective Assistance of Appellate Counsel
[A]n appellate advocate may deliver deficient performance and prejudice a
defendant by omitting a dead-bang winner.
United States v. Cook , 45 F.3d
388, 395 (10th Cir. 1995) (citation omitted). A dead-bang winner is an issue
which was obvious from the trial record,
in a reversal on appeal.
and one which would have resulted
Id. (citation omitted).
Petitioners appellate counsel did not challenge the presumed not guilty
instruction in petitioners opening brief on direct appeal, and we must first decide
whether appellate counsel was ineffective in failing to challenge the instruction
before the Flores case was decided. This court has previously addressed this
issue, and we rejected the claim of a state habeas petitioner that the basis of
reversal recognized in
Flores was obvious and should have been apparent to
-3-
[petitioners] appellate counsel even before
Flores was decided. Sherrill v.
Hargett , 184 F.3d 1172, 1176 (10th Cir.),
cert. denied , 528 U.S. 1009 (1999) . 1
However, Sherrill is distinguishable because the OCCA did not publish its
opinion in Flores until over three years after the petitioners direct appeal was
completed in Sherrill . Id. at 1175. Here, by contrast, petitioners direct appeal
was still pending at the time
Flores was published. In addition, petitioner alleges
that, after his appellate counsel filed his opening brief, but before the OCCA
issued its decision in
Flores , he raised the Flores issue with his counsel and
instructed him to file a supplemental brief in the OCCA raising the issue.
Petitioner alleges that his appellate counsel refused to file a supplemental brief.
Thus, the issue here is whether the procedural rules in effect in the OCCA at the
time of petitioners direct appeal permitted petitioner to file a supplemental brief
raising the Flores issue.
On their face, the procedural rules in effect in the OCCA during the
pendency of petitioners direct appeal prohibited the filing of supplemental briefs
on issues that were not raised in the opening brief.
See Okla. Stat. Ann. tit. 22,
We note that, prior to the decision in

Sherrill , the OCCA had held that
Flores was based on preexisting Oklahoma case law and statutory rules and did
not announce a new rule of law.
Walker v. State , 933 P.2d 327, 338 (Okla. Crim.
App. 1997). However, Walker was not discussed in Sherrill , and it is unclear
whether the case was brought to the attention of this court at the time
Sherrill was
decided.
-4-
ch. 18, app. Rules 3.4(F)(1) and 3.4(F)(2) (effective Aug. 1, 1993 and Sept. 14,
1994, respectively). However, a published decision of the OCCA indicates that,
in certain circumstances, the court would still review an issue raised for the first
time in a supplemental brief for fundamental error.
See Brown v. State ,
871 P.2d 56, 68 (Okla. Crim. App. 1994). Under Oklahoma law, fundamental
error is the same as plain error, and it involves errors which go to the
foundation of the case, or which take from a defendant a right which was essential
to his defense.
Simpson v. State , 876 P.2d 690, 695 (Okla. Crim. App. 1994)
(quotation omitted). The fundamental error standard also includes a harmless

error review, id. at 697-98, and it appears that this is the same standard of
review utilized by the OCCA in
Flores . See Flores , 896 P.2d at 560 (combining
a plain and harmless error analysis). Accordingly, we remand this matter

to the district court for an evidentiary hearing to determine whether petitioners
appellate counsel was ineffective in failing to seek leave to file a supplemental
brief based on a fundamental error analysis.
On remand, the district court will also have to determine if, under federal
habeas standards, the giving of the presumed not guilty instruction was only
harmless error in light of the evidence presented at trial of petitioners guilt.
See Walker v. Gibson , 228 F.3d 1217, 1236-37 (10th Cir. 2000) (holding that
presumed not guilty instruction was harmless error for purposes of federal
habeas relief, and claim of ineffective assistance of appellate counsel, in light of
overwhelming evidence of defendants guilt),
petition for cert. filed (U.S. Apr.
18, 2001) (No. 00-9558).
2
-5-
Petitioners ineffectiveness claim has also placed in issue the adequacy of

the OCCAs procedural rule, and respondent will have the burden on remand to
show that the rule prohibiting supplemental briefs was based on adequate state
grounds. See Hooks v. Ward , 184 F.3d 1206, 1216-17 (10th Cir. 1999). This will
require respondent to prove that, with respect to the
applied the rule consistently and evenhandedly.
Flores issue, the OCCA has

See Romano v. Gibson , 239 F.3d
1156, 1170 (10th Cir. 2001).

II. Alleged Disbarment of Petitioners Trial Counsel
Petitioner alleges that, after his trial, his trial counsel was disbarred by the
Oklahoma Supreme Court for neglecting his defense and that his appellate
counsel was ineffective for failing to investigate this matter. Petitioner has also
alleged that his trial counsel failed to properly investigate the charges against him
and prepare for trial. Because petitioners allegations, if true, would entitle him
to habeas relief, we grant petitioner a COA on this issue and remand for an
evidentiary hearing.
petition for cert. filed
See Walker v. Gibson , 228 F.3d 1217, 1231 (10th Cir. 2000),
(U.S. Apr. 18, 2001) (No. 00-9558).
III. Ineffective Assistance of Trial Counsel

Because petitioner attempted unsuccessfully to develop the factual basis
of his claims during the post-conviction proceedings in state court, his request
for an evidentiary hearing is governed by pre-AEDPA standards, rather than
2254(e)(2). See Walker , 228 F.3d at 1231.
-6-
Petitioners trial counsel failed to object at trial to the presumed not

guilty instruction. However, any claim of ineffective assistance of trial counsel
with respect to the Flores issue is procedurally barred because: (1) petitioner had
separate trial and appellate counsel; and (2) this aspect of petitioners
ineffectiveness claim could have been resolved on the trial court record alone if
petitioner had asserted the claim on direct appeal.
See English v. Cody , 146 F.3d
1257, 1264 (10th Cir. 1998). We therefore deny a COA on this claim.
Petitioner also claims that his trial counsel was ineffective in failing to
investigate a potential witness to determine whether she could have provided
exculpatory testimony at trial. The witness was allegedly an employee at the WalMart store where the larceny took place. Although petitioner failed to raise this
claim on direct appeal, there was no procedural default because this claim raises
issues that are outside of the trial court record.
Id. Although we are skeptical of
this claim, it is unrefuted on the present record, and petitioners allegations, if

true, would entitle him to habeas relief. We therefore grant petitioner a COA on
this claim and remand for an evidentiary hearing.
Based on the foregoing, we GRANT petitioner a COA on the issues set
forth above and REMAND this matter for an evidentiary hearing. We DENY
-7-
petitioners application for a COA in all other respects.
Further, we DENY
petitioners motion for summary disposition and his appellate application to

proceed in forma pauperis as moot. On remand, if petitioner qualifies for the
appointment of counsel under 18 U.S.C. 3006A(g), the district court shall
appoint counsel for petitioner pursuant to 28 U.S.C. 2254 Rule 8(c).
Entered for the Court
Stephanie K. Seymour
Circuit Judge
Petitioner also sought a COA on the following issues: due process

violation based on Flores issue, insufficient evidence, invalid prior convictions,
wrongful suspension of state habeas rights, prejudicial first stage jury instruction,
prejudicial evidence of other crimes, and prosecutorial misconduct.
4
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

LEONARD RENAL ROBERTS,

Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.

Pursuant to 28 U.S.C. 2253(c), we previously granted petitioner a

Flores v. State , 896 P.2d 558

Flores , the OCCA held that a jury instruction stating

Flores . The OCCA

United States v. Cook , 45 F.3d

and one which would have resulted

Id. (citation omitted).

Flores was obvious and should have been apparent to

[petitioners] appellate counsel even before

Flores was decided. Sherrill v.

Hargett , 184 F.3d 1172, 1176 (10th Cir.),

cert. denied , 528 U.S. 1009 (1999) . 1

Flores was published. In addition, petitioner alleges

Flores , he raised the Flores issue with his counsel and

See Okla. Stat. Ann. tit. 22,

We note that, prior to the decision in

See Brown v. State ,

(quotation omitted). The fundamental error standard also includes a harmless

Flores . See Flores , 896 P.2d at 560 (combining

a plain and harmless error analysis). Accordingly, we remand this matter

Petitioners ineffectiveness claim has also placed in issue the adequacy of

Flores issue, the OCCA has

1156, 1170 (10th Cir. 2001).

III. Ineffective Assistance of Trial Counsel

Petitioners trial counsel failed to object at trial to the presumed not

See English v. Cody , 146 F.3d

Id. Although we are skeptical of

this claim, it is unrefuted on the present record, and petitioners allegations, if

petitioners application for a COA in all other respects.

petitioners motion for summary disposition and his appellate application to

Petitioner also sought a COA on the following issues: due process

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