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    Filed: 1998-10-14 Precedential Status: Non-Precedential Docket: 97-6197

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    Filed: 1998-10-14 Precedential Status: Non-Precedential Docket: 97-6197

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    9 views6 pages

    Cooper v. Klinger, 10th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    Filed: 1998-10-14 Precedential Status: Non-Precedential Docket: 97-6197

    Copyright:

    Public Domain
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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    OCT 14 1998

    PATRICK FISHER
    Clerk

    GERALD L. COOPER,
    Petitioner-Appellant,
    No. 97-6197
    (D.C. No. CIV-96-79-C)
    (W.D. Okla.)

    v.
    KENNETH KLINGER,
    Respondent-Appellee.

    ORDER AND JUDGMENT

    Before BRORBY, McKAY, 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); 10th Cir. R. 34.1.9. 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    This order and judgment is not binding precedent, except under the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 Gerald L. Cooper, appearing pro se, seeks a certificate of


    probable cause to appeal the district courts order dismissing his petition for writ
    of habeas corpus under 28 U.S.C. 2254.

    Petitioner was convicted in Oklahoma

    in 1988 of one count of first degree rape, two counts of forcible oral sodomy, one
    count of forcible anal sodomy and one count of indecent or lewd acts with a child
    under sixteen years of age, all occurring after prior convictions of two or more
    felonies. Petitioner was sentenced to 300 years imprisonment.
    Petitioner challenges his conviction claiming his constitutional rights were
    violated because (1) hearsay testimony of the child victim was improperly
    admitted; (2) hearsay testimony of state witness Lea Jones was improperly
    admitted; (3) hearsay testimony of state witness Dr. Parker-Hughey was
    improperly admitted; (4) a videotaped interview of the child victim was

    The district court denied petitioner a certificate of appealability in its order


    dated June 20, 1997, and petitioner requests this court to issue one. The
    certificate of appealability provisions of the Antiterrorism and Effective Death
    Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214 (AEDPA) do not apply,
    however, because petitioners habeas petition was filed prior to AEDPAs
    effective date of April 24, 1996.
    See Jackson v. Shanks , 143 F.3d 1313, 1316 n. 1
    (10th Cir. 1998), petition for cert. filed , (U.S. Aug. 3, 1998) (No. 98-5679).
    Petitioner remains subject, however, to the pre-AEDPA requirement that he obtain
    a certificate of probable cause before bringing his appeal, requiring him to make a
    substantial showing of the denial of a federal right,
    see Barefoot v. Estelle , 463
    U.S. 880, 893 (1983), the same showing a petitioner must make under AEDPA
    standards to obtain a certificate of appealability,
    see Lennox v. Evans , 87 F.3d
    431, 434 (10th Cir. 1996), cert. denied ,117 S. Ct. 746 (1997). Therefore, we
    construe petitioners request as a request for a certificate of probable cause.
    1

    -2-

    improperly admitted; (5) the improperly admitted evidence had a cumulative


    effect; (6) the prosecutor withheld exculpatory evidence; (7) the expert testimony
    of Dr. Parker-Hughey was not reliable; (8) the state relied on erroneous scientific
    data; (9) the testimony of Dr. Parker-Hughey improperly bolstered the testimony
    of the child victim; (10) his counsel failed to obtain expert witnesses to challenge
    the states experts; (11) the prosecutor misled the court and the jury as to Dr.
    Parker-Hugheys qualifications; (12) his trial counsel waived his right to rebut the
    child victims testimony; (13) he received ineffective assistance of counsel at the
    guilt/innocence stage of trial because his counsel failed to object to or otherwise
    prevent the foregoing errors; (14) the prosecutor improperly expressed his opinion
    during the sentencing stage of the trial that the evidence was uncontroverted, and
    gave the jury improper rules of thumb to determine his sentence; (15) the
    prosecutor improperly expressed his opinion during the sentencing stage of the
    trial that it was uncontroverted that petitioner had four prior felony convictions;
    (16) the prosecutor identified himself as part of the jury during the sentencing
    stage; and (17) he received ineffective assistance of counsel at the sentencing
    stage of the trial because his counsel failed to object to the alleged prosecutorial
    misconduct.
    The district court adopted the magistrate judges proposed findings and
    recommended disposition. The magistrate judge held that petitioner had properly
    -3-

    exhausted his state remedies with respect to claim nine (that Dr. Parker-Hughey
    improperly bolstered the victims credibility), and claims fourteen, fifteen, and
    sixteen (allegations of prosecutorial misconduct) by raising them on direct appeal.
    See Coleman v. Thompson , 501 U.S. 722, 731 (1991). As to these four claims,
    the magistrate judge found that none of the challenged testimony or comments
    rendered the trial so fundamentally unfair as to constitute a denial of due process.
    The magistrate judge held that petitioner had procedurally defaulted all of his
    remaining claims, except his claims of ineffective assistance of counsel. As to
    the procedurally barred claims, the magistrate judge found that petitioner had not
    shown cause for his default or prejudice resulting therefrom.

    See Coleman , 501

    U.S. at 750. Finally, as to the ineffective assistance of counsel claims, the


    magistrate judge held that petitioner failed to show that his counsels performance
    was so deficient that counsel was not performing to the level guaranteed by the
    Sixth Amendment, or that counsels deficient performance prejudiced him.

    See

    Strickland v. Washington , 466 U.S. 668, 687 (1984).


    Our scope of review in federal habeas proceedings is limited; we may
    grant habeas relief to a state prisoner only if state court error deprived him of
    fundamental rights guaranteed by the Constitution of the United States.
    Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir. 1998),
    (U.S. Aug. 3, 1998) (No. 98-5679) (quoting
    -4-

    petition for cert. filed ,

    Brinlee v. Crisp , 608 F.2d 839, 843

    (10th Cir. 1979). Because this case was filed before the enactment of the
    AEDPA, we apply pre-amendment standards of review.
    bases for the district courts dismissal of the 2254 petition
    afford deference to the state courts construction of state law,

    Id. We review the legal


    de novo , but we
    and we review the

    federal district courts factual findings for clear error, and presume the state
    courts factual findings are correct.

    See id. ; 28 U.S.C. 2254 (pre-amendment).

    We have reviewed the transcripts of the state criminal trial, the pleadings
    and rulings in the state court direct appeal and post-conviction proceedings, the
    magistrate judges report, the district courts order, the petitioners brief and
    application for certificate of probable cause, and respondents response thereto.
    For substantially the reasons stated in the well-reasoned report by the magistrate
    judge dated October 23, 1996, and the district courts February 6, 1997 order
    adopting this report, we conclude petitioner has failed to make a substantial
    showing of the denial of [a] federal right by demonstrating the issue is
    debatable among jurists of reason, or that another court could resolve the issue
    differently, or that the question deserves further proceedings.

    Barefoot , 463 U.S.

    at 893 n.4 (quotations omitted). Consequently, we DENY petitioners application

    -5-

    for a certificate of probable cause and DISMISS this appeal. The mandate shall
    issue forthwith.

    Entered for the Court

    Mary Beck Briscoe


    Circuit Judge

    -6-

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