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    1) The petitioner, Willard Keith Cudjo, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his convictions for conspiracy to commit robbery, robbery with a dangerous weapon, and first degree murder. 2) The district court denied the petition, adopting the magistrate judge's recommendation to deny relief. 3) The Tenth Circuit Court of Appeals denied the petitioner's application for a certificate of appealability and dismissed the appeal, agreeing with the district court's conclusion that the petitioner failed to make a substantial showing that his constitutional rights were denied.

    Original Description:

    Filed: 2000-10-06 Precedential Status: Non-Precedential Docket: 99-7083

    Original Title

    Cudjo v. Ward, 10th Cir. (2000)

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    1) The petitioner, Willard Keith Cudjo, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his convictions for conspiracy to commit robbery, robbery with a dangerous weapon, and first degree murder. 2) The district court denied the petition, adopting the magistrate judge's recommendation to deny relief. 3) The Tenth Circuit Court of Appeals denied the petitioner's application for a certificate of appealability and dismissed the appeal, agreeing with the district court's conclusion that the petitioner failed to make a substantial showing that his constitutional rights were denied.

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    25 views6 pages

    Filed: Patrick Fisher

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    Scribd Government Docs
    1) The petitioner, Willard Keith Cudjo, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his convictions for conspiracy to commit robbery, robbery with a dangerous weapon, and first degree murder. 2) The district court denied the petition, adopting the magistrate judge's recommendation to deny relief. 3) The Tenth Circuit Court of Appeals denied the petitioner's application for a certificate of appealability and dismissed the appeal, agreeing with the district court's conclusion that the petitioner failed to make a substantial showing that his constitutional rights were denied.

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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 6 2000

    PATRICK FISHER
    Clerk

    WILLARD KEITH CUDJO,


    Petitioner-Appellant,
    No. 99-7083
    (D.C. No. 97-CIV-608-B)
    (E.D. Okla.)

    v.
    RON J. WARD, Warden,
    Respondent-Appellee.

    ORDER AND JUDGMENT

    Before TACHA , EBEL , 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.


    Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. 2254.
    The magistrate judge recommended that the petition be denied, and petitioner

    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.

    filed objections. With one minor notation, the district court adopted the
    magistrate judges recommendation, denied the petition, and declined to grant
    a certificate of appealability (COA). We deny petitioners application to this
    court for a COA and dismiss the appeal.
    Petitioner was convicted, following a jury trial, of Conspiracy to Commit
    Robbery by Force or Fear (Count I), Robbery With a Dangerous Weapon (Count
    II), and First Degree Malice Aforethought Murder (Count III), for which he
    received sentences of ten years, seventy-five years, and death, respectively.
    On appeal, the convictions and sentences were affirmed as to Counts I & II and
    the conviction on Count III. Finding plain error in the imposition of the death
    penalty, the Oklahoma Court of Criminal Appeals modified that sentence to life
    imprisonment without parole.

    See Cudjo v. State , 925 P.2d 895 (Okla. Crim.

    App. 1996). Petitioners subsequent application for post-conviction relief was


    denied. See Cudjo v. State , No. PC-97-958 (Okla. Crim. App. Sept. 12, 1997).
    He then filed this application for a writ of habeas corpus, raising the following
    claims:
    1.

    The information failed to properly allege elements of the


    offense of first degree murder under the law in effect at the
    time of the offense;

    2.

    The evidence was insufficient to support the convictions for


    robbery with a dangerous weapon and for first degree murder;
    Petitioner was denied the effective assistance of trial and
    appellate counsel;

    3.

    -2-

    4.

    Petitioners arrest and search were predicated on invalid


    warrants not supported by probable cause;

    5.

    The evidence was insufficient to support the conviction for


    conspiracy to commit robbery by force or fear; and

    6.

    The admission of other crimes evidence was prejudicial error


    in violation of the state and federal constitutions.

    The State concedes that petitioner has exhausted his state remedies on these
    issues.
    In well-reasoned findings and recommendation, adopted by the district
    court, the magistrate judge recommended that relief be denied and the habeas
    action dismissed. On appeal, petitioner continues to urge the claims addressed
    and decided by the district court.
    Petitioner first claims that the information in his case was insufficient
    because it failed to allege the elements of the offense of First Degree Murder
    and failed to inform [him] of the theory of homicide upon which the State would
    rely. Cudjo , 925 P.2d at 897. The Oklahoma Court of Criminal Appeals
    carefully reviewed this claim in light of the trial record and determined that
    petitioner received adequate notice of the charge against him and that he
    understood he was charged with malice aforethought murder.
    In addition, the Oklahoma cases he relies on have been overruled.

    See id. at 898.


    See Parker v.

    State , 917 P.2d 980, 986 and n.4 (Okla. Crim. App. 1996) (overruling earlier
    -3-

    cases holding that to confer jurisdiction on a trial court, information must allege
    all elements of crime charged). Finally, although he argues generally that the
    information was defective,

    see Appellants Br. at 1-5, he does not take issue with

    the state courts determination that he had sufficient notice of the charge against
    him based on the four corners of the Information together with all of the
    materials that were made available to [petitioner] at preliminary hearing and
    through discovery and that during closing argument defense counsel had
    acknowledged that both counsel and petitioner understood the charges they were
    there to defend against.

    Cudjo , 925 P.2d at 898 and n.1. This claim is therefore

    without merit.
    Next, petitioner contends that the evidence was insufficient to support the
    convictions for robbery with a dangerous weapon and for murder in the first
    degree. This claim was thoroughly analyzed by the Oklahoma Court of Criminal
    Appeals under the constitutional standard of

    Jackson v. Virginia , 443 U.S. 307

    (1979). See Cudjo , 925 P.2d at 899-901. Habeas corpus relief is proper only
    when the state courts adjudication of a claim has resulted in a decision contrary
    to or involving an unreasonable application of clearly established federal law or
    resulted in a decision based on an unreasonable determination of the facts in light
    of the evidence presented in state court.

    See 28 U.S.C. 2254(d). Petitioner

    simply reargues his version of the facts.

    See Appellants Br. at 6-14. This is


    -4-

    insufficient to meet the requirements of 2254(d). Under


    must be viewed in the light most favorable to the prosecution.

    Jackson , the evidence


    See Jackson , 443

    U.S. at 319.
    Petitioner further contends he was denied the effective assistance of
    trial and appellate counsel. This issue was raised in state court by way of the
    post-conviction proceeding. Specifically, petitioner claims that trial and appellate
    counsel should have raised his last three issues, i.e., the invalidity of the search
    and arrest warrants, insufficiency of the evidence to support the conviction for
    conspiracy to commit a robbery by force or fear, and admission of other crimes
    evidence amounting to prejudicial error.
    The Oklahoma Court of Criminal Appeals found the substantive issues to
    be procedurally barred under Okla. Stat. tit. 22, 1086 because they were not
    raised on direct appeal. The court further determined that appellate counsel was
    not ineffective, particularly in view of the fact that the direct appeal successfully
    challenged the death penalty. The court considered petitioners claims in light of
    the requirements of Strickland v. Washington , 466 U.S. 668 (1984), which
    requires a showing that counsels performance was deficient and that the deficient
    performance prejudiced the defense.

    See id. at 687.

    The district court affirmed the magistrate judges determination that the
    Court of Criminal Appeals correctly applied the
    -5-

    Strickland standard and that

    under 2254(d) petitioner was not entitled to habeas corpus relief. The court also
    noted that petitioner had made a general claim of actual innocence,

    see R. Doc. 2

    at 55-56, but had failed to support this allegation with a colorable showing of
    factual innocence.

    See Herrera v. Collins , 506 U.S. 390, 404 (1993) (further

    quotations omitted). We agree with the district courts conclusion that petitioner
    has failed to make such a showing.
    A petitioner may not appeal the denial of a 2254 petition unless a circuit
    justice or judge issues a COA.

    See 28 U.S.C. 2253(c)(1)(A). A COA may

    issue . . . only if the applicant has made a substantial showing of the denial of
    a constitutional right.

    Id. , 2253(c)(2). Upon review of the record and brief,

    along with the magistrate judges findings and recommendation and the district
    courts order, we deny the COA for substantially the reasons set forth in the
    magistrate judges findings and recommendation.
    Application for COA DENIED; appeal DISMISSED.
    Entered for the Court
    Deanell Reece Tacha
    Circuit Judge

    -6-

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