F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

SEP 19 2000

PATRICK FISHER
Clerk

THOMAS LESTER PUGH, suing as:

Tom Lester Pugh,
Petitioner-Appellant,
v.
GARY L. GIBSON, Warden,
Oklahoma State Penitentiary; THE
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA, sued as:
Drew Edmondson, Attorney General of
the State of Oklahoma,

No. 99-5229
(D.C. No. 96-CV-976-K)
(N.D. Okla.)

Respondents-Appellees.
ORDER AND JUDGMENT

Before BALDOCK , KELLY , and HENRY , 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This order and judgment is not binding precedent, except under the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.

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, Tom Lester Pugh, appeals the district courts dismissal of
his habeas corpus petition brought pursuant to 28 U.S.C. 2254. We grant
a certificate of appealability as to all issues but one and affirm.
In 1972, petitioner was sentenced to life imprisonment after his conviction
in Oklahoma state court of first degree malice aforethought murder. His
conviction was affirmed by the Oklahoma Court of Criminal Appeals.
Petitioners first federal habeas petition, filed prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA), was dismissed without
prejudice for failure to exhaust state remedies. When attempts to secure state
post-conviction relief proved unavailing, petitioner filed a second habeas petition
in the federal district court. The second federal petition was filed after the
enactment of AEDPA. The first issue we address is whether AEDPA applies to
this petition.
Petitioner argues that, because his first federal petition was filed
pre-AEDPA, that Act should not apply. He maintains that the filing date of his
second federal petition should relate back to the date of his first filing, and that
the district court erred in applying AEDPA to his petition. We disagree.

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Since petitioner filed his brief, the Supreme Court in

Slack v. McDaniel ,

120 S. Ct. 1595 (2000), has clarified the status of petitions such as this one.
In Slack , the petitioner filed a pre-AEDPA habeas petition in the district court.
The court dismissed the petition without prejudice because of exhaustion
problems. Petitioner eventually filed a second amended petition after the
enactment of AEDPA. In addressing whether the second petition was successive
the Court stated: A petition filed after a mixed petition has been dismissed
under Rose v. Lundy before the district court adjudicated any claims is to be
treated as any other first petition and is not a second or successive petition.
Id. at 1605. See also McWilliams v. Colorado

, 121 F.3d 573, 575 (10th Cir.

1997). Indeed, the Supreme Court counseled that it is more appropriate to treat
the initial mixed petition as though it had not been filed.

Slack, 120 S. Ct.

at 1606. Petitioners first petition, therefore, filed pre-AEDPA, is of no

consequence. Treating his second petition, filed post-AEDPA, as any other
first petition, the district court correctly applied AEDPA.
In addition to his AEDPA argument, petitioner advances the following
issues: (1) pretrial publicity denied him a fair trial; (2) the state suppressed
evidence concerning promises of immunity to certain prosecution witnesses;
(3) prejudicial closing argument denied him a fair trial; (4) the states refusal
to afford him a timely parole hearing violated his rights under the Fourteenth
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Amendment; (5) the state suppressed exculpatory eyewitness testimony; and

(6) petitioner was denied effective assistance of trial counsel.
The district court rejected petitioners first four constitutional claims on the
merits; the remaining claims were held to be procedurally barred under Oklahoma
law. Because AEDPA governs this case, petitioner must seek a certificate of
appealability in order to obtain review of the dismissal of his habeas petition.
See id. at 1603 (applying 28 U.S.C. 2253(c)).
For those claims decided on the merits by the district court, petitioner must
show that reasonable jurists would find the district courts assessment of the
constitutional claims debatable or wrong.

Id. at 1604.

[W]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoners underlying constitutional
claim, a [certificate of appealability] should issue when the prisoner
shows, at least, 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 was correct in its procedural ruling.
Adams v. LeMaster , No. 99-2348, 2000 WL 1174646, at *2 (10th Cir. Aug. 18,
2000) (quoting Slack ,120 S. Ct. at 1604).
We have reviewed the record in this case and the issues brought before us
and conclude that, with respect to petitioners first four claims, reasonable jurists
could find it debatable whether the petition states a valid claim of the denial of
a constitutional right,

see id. , and we, therefore grant a certificate of

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appealability as to those issues. We also hold that reasonable jurists could find
it debatable whether the district court erred in dismissing petitioners claim of
ineffective assistance of trial counsel on the basis of procedural bar, and we also
grant a certificate of appealability as to that issue. With regard to the issue of
suppression of exculpatory eyewitness testimony, we hold that the district court
was correct to invoke procedural bar to dispose of that claim and that no
reasonable jurist could find the correctness of the district courts procedural
ruling debatable. We therefore deny a certificate of appealability as to that issue
and dismiss the claim on appeal. We now address petitioners remaining claims.
Under AEDPA, petitioner will not be entitled to habeas relief unless the
state courts adjudication of the merits of his claims resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Supreme Court precedent or 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).
Under the contrary to clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts. Under the
unreasonable application clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from [the Supreme]
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Courts decisions but unreasonably applies that principle

to the facts of the prisoners case.
Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000).
Petitioner first argues that his trial was tainted by pretrial publicity and that
he should have been granted a change of venue. On direct appeal, the Oklahoma
Court of Criminal Appeals found that all jurors composing the final panel stated
that they would decide the case based upon the evidence presented at trial and not
from what they may have heard or read.

Pugh v. State , 528 P.2d 719, 727

(Okla. Crim. App. 1974). That court found further that there is no evidence
that the jury did not reach a verdict based solely on the evidence presented
in court. Id.
After reviewing the record on appeal, we agree with the district court that
this decision by the Oklahoma Court of Criminal Appeals was neither contrary to
nor an unreasonable application of clearly established Supreme Court precedent
and did not result in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the Oklahoma state court
proceedings. See 28 U.S.C. 2254(d).
As his second argument, petitioner contends that his right to a fair trial was
violated when the state suppressed evidence regarding promises of immunity to
two state witnesses who testified against him. On direct appeal, the Oklahoma
Court of Criminal Appeals found that the jury was fully advised as to the past
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records of the witnesses . . . ; that they had actions pending against them, both in
Oklahoma and other states; and that they hoped to get something for their
testimony in the instant case.

Pugh , 528 P.2d at 724. Based on these facts, the

court held that no information material to the guilt or punishment of petitioner

had been withheld from the jury.

See id. Our review of the record again compels

us to agree with the district court that this adjudication cannot be the basis for
federal habeas relief.

See Williams , 120 S. Ct. at 1523.

The third issue on which we have granted a certificate of appealability is

petitioners claim that a prejudicial closing argument denied him a fair trial.
Specifically, petitioner charges that the prosecutions appeal to societal alarm in
his closing remarks abridged his right to due process. The Oklahoma Court of
Criminal Appeals rejected this claim because defense counsel had not objected to
the statements by the prosecutor nor had he asked that the jury be admonished.
See Pugh , 528 P.2d at 727.
Without explaining why it disregarded the finding of procedural default by
the Oklahoma Court of Criminal Appeals, the district court addressed the merits
of this claim. See Pickens v. Gibson, 206 F.3d 988, 1001 (10th Cir. 2000)
(affirming denial of habeas relief in part and reaching merits of ineffective
assistance claim after Oklahoma court had held it to be procedurally defaulted).
As did the district court, we have thoroughly examined the proceedings in this
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case and conclude that the isolated remarks complained of by petitioner did not
make petitioners trial so fundamentally unfair as to deny him due process.
Donnelly v. DeChristoforo , 416 U.S. 637, 645 (1974). The decision by the
Oklahoma court to deny petitioner relief on this claim will not support the grant
of a writ of habeas corpus under the standards of 28 U.S.C. 2254(d).
Petitioner next argues that the states refusal to afford him a timely parole
hearing violates the Fourteenth Amendment and justifies a release from custody.
The Oklahoma Court of Criminal Appeals rejected this claim on the merits.
As discussed by the district court, the facts underlying petitioners claim to
a mandatory parole hearing no later than December 1987 are in such disarray we
cannot possibly conclude that the decision by the Oklahoma Court of Criminal
Appeals on this issue is either contrary to or an unreasonable application of
clearly established federal law or is based on an unreasonable determination
of the facts in light of the evidence presented in the Oklahoma proceedings.
See 28 U.S.C. 2254(d).
We now turn to petitioners claim of ineffective assistance of trial counsel.
Petitioner raised this claim for the first time in his state post-conviction
proceeding. The Oklahoma Court of Criminal Appeals held the issue to be
procedurally barred because it had not been raised on direct appeal.

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In adjudicating this claim, the district court applied

English v. Cody ,

146 F.3d 1257 (10th Cir. 1998), to determine whether Oklahomas procedural bar
would preclude review of petitioners ineffective assistance claim. In concluding
that it would, the district court held that petitioners case met the two

English

conditions for such preclusion: because petitioners original trial lawyer had new
co-counsel on appeal, petitioner had an opportunity to confer with separate
counsel on appeal; and the ineffectiveness claim could be resolved on the trial
record alone. The court thus held petitioners ineffective assistance claim to be
procedurally barred.
This court has not resolved whether the presence of new co-counsel on
appeal along with the original trial counsel complies with the new-attorney-onappeal requirement of

English . Nor do we do so here. Instead, we address the

merits of petitioners ineffective assistance of counsel claim and agree with the
district court that petitioner is not entitled to habeas relief.
Petitioner argues that his trial counsel failed to adequately investigate,
prepare and present the testimony of Karl Tiger, and that this was deficient
performance which prejudiced petitioner. In order to make this showing,
petitioner must establish that counsels representation fell below an objective
standard of reasonableness. To establish prejudice he must show that there is
a reasonable probability that, but for counsels unprofessional errors, the result
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of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.

Williams,

120 S. Ct. at 1511-12 (quotation omitted).

The states theory of this case was that petitioner and an accomplice, Albert
McDonald, donned ski masks and trench coats, entered the victims home, shot
him in the head and left together. Police records in this case indicate that two
young boys were playing in the yard outside the victims apartment on the night
of the murder and witnessed a person or persons leaving the apartment shortly
after hearing a series of pops. One of the boys was Kenny Simpson who
testified at the preliminary hearing of the man originally charged in this case, one
Beaufort Bourland. The other youngster was Karl Tiger. Petitioner met Tiger
years later when both were incarcerated in the same prison. As part of his state
post-conviction proceeding, petitioner presented an affidavit of Mr. Tiger stating
that he had seen only one man leave the house that night. Tiger further stated
that, when shown a photographic lineup containing a picture of petitioner the day
after the murder, he failed to identify petitioner as someone he had seen the night
of the crime.
As mentioned above, petitioner was convicted in 1972. More than twenty
years later, in 1994, petitioner filed his first application for post-conviction relief
in state court. By that time, many of the records of this case were no longer
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available, apparently only one copy of the trial transcript remained, which
petitioners counsel described as in sad condition, Appellants App. Vol. I
at 238, and petitioners trial counsel had died. Our review of the evidentiary
hearing held in the state district court, however, convinces us that petitioner
has failed to establish that his trial attorney was ineffective.
Petitioners attorney did not ignore the value of Karl Tiger as a defense
witness and, in fact, issued a subpoena for his appearance. A second subpoena
was also issued for Karl Tiger, on behalf of defendant McDonald. Although the
copy in the record is illegible, the representation by petitioners counsel at the
hearing was that the return of service on the second subpoena indicated that Karl
Tiger could not be found.

Id. at 249.

When efforts to locate the young Karl Tiger proved fruitless, petitioners
attorney chose to read into the record the testimony from Kenny Simpson, which
Kenny had given at the preliminary hearing for Beaufort Bourland.

While

confusing and sometimes inconsistent, the thrust of Kennys testimony was that
he saw one old grey-haired man leave the apartment after the shooting--not the
two younger men in ski masks as the state was trying to prove. Given the
situation facing him, this was the best petitioners attorney could do in an attempt

Kenny Simpson had also apparently moved from Tulsa with his mother by
the time of trial and could not be located.

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to get the potentially exculpatory evidence before the jury. Petitioner has failed
to show that trial counsels representation fell below an objective standard of
reasonableness. Although for different reasons, we affirm the finding of the
district court that petitioners claim of ineffective assistance of trial counsel
does not warrant federal habeas relief.
As to the claim upon which we have denied a certificate of appealability,
that the state suppressed the testimony of Karl Tiger, we agree that petitioner
should have raised that claim on direct appeal and thus is procedurally barred
from having it considered pursuant to a 2254 petition. References to Karl Tiger
are in the trial record,

see Tr. at 539; see also Preliminary Information charging

Beaufort Bourland with Murder (loose document labeled Defendants Exh. 2).
Petitioner does not argue that there was cause and prejudice for his default
or that failure to review this claim on federal habeas would result in a
fundamental miscarriage of justice. He argues instead that the Oklahoma courts
reached the merits of this claim. This argument is unavailing. The Oklahoma
Court of Criminal Appeals listed the three issues brought in the post-conviction
proceedings, discussed the facts of petitioners suppression claim briefly, and
then stated: Petitioner has failed to show that he is entitled to any relief in
a post-conviction proceeding. He has not raised any issues that he did not or
could not have raised in his appeal. Appellants App. Vol. II at 326. The fact
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that the court then went on to discuss the merits of this issue as an alternative
holding does not vitiate the initial finding of procedural bar.

See Harris v. Reed ,

489 U.S. 255, 264 n.10 (1989) (noting that a state court need not fear reaching
the merits of a federal claim in an

alternative holding. By its very definition,

the adequate and independent state ground doctrine requires the federal court
to honor a state holding that is a sufficient basis for the state courts judgment,
even when the state court also relies on federal law.).
Petitioners request for a certificate of appealability is granted as to all
issues except the claim of suppression of eyewitness testimony. As to that claim,
the request for a certificate of appealability is denied, and that portion of this
appeal is DISMISSED. The balance of the judgment of the United States District
Court for the Northen District of Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry
Circuit Judge

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