Barocio v. Ward , 243 F. App'x 398 ( 2007 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    July 25, 2007
    UNITED STATES CO URT O F APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                        Clerk of Court
    M ER CE R . B AR OC IO ,
    Petitioner - A ppellant,
    No. 07-7025
    v.                                             (D.C. No. CIV-04-126-RAW )
    (E.D. Okla.)
    R ON W A R D ,
    Respondent - Appellee.
    O RD ER DEN YIN G A CER TIFIC ATE O F
    APPEALABILITY
    Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
    M erce R. Barocio, a state prisoner proceeding pro se, requests a certificate
    of appealability (“COA”) to appeal the district court’s denial of his § 2254 habeas
    petition. In challenging his state court conviction, Barocio claims that evidence
    used against him was obtained in violation of the Fourth Amendment, that the
    prosecutor failed to perform a plea agreement, and that his counsel was
    ineffective. W e D EN Y the application for a COA.
    On M ay 20, 1999, the Choctaw County Sheriff’s Office received
    information that Barocio was making methamphetamine at the home of his aunt.
    W hen officers approached the house, they smelled a strong chemical odor
    associated with methamphetamine and observed Barocio running out the back
    door. Barocio was apprehended, and a search of the home revealed a
    methamphetamine laboratory. Officers found Barocio’s fingerprints on several
    items in the laboratory. At Barocio’s trial, a witness testified that she had
    purchased methamphetamine-production supplies with Barocio, and returned with
    him to his aunt’s house to make the drugs. On November 6, 2001, Barocio was
    found guilty of manufacturing methamphetamine in violation of 
    Okla. Stat. tit. 63, § 2-401
    (F), and sentenced to 25 years’ imprisonment. On direct appeal, Barocio
    challenged the admission of evidence from the search, claimed the prosecutor
    failed to perform a plea agreement, and alleged cumulative error. After that
    appeal was denied, Barocio sought post-conviction relief in state court, alleging
    ineffective assistance of counsel and cumulative error. The district court denied
    Barocio’s petition, and the Oklahoma Court of Criminal Appeals (“OCCA”)
    affirmed. W hile his state petition was pending, Barocio filed the present habeas
    petition in federal district court. Adopting the m agistrate judge’s
    recom mendation, the district court dismissed his petition. He now seeks a COA
    from this court to appeal that decision. 1
    A COA may issue “only if the applicant has made a substantial showing of
    the denial of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). Barocio must show
    1
    Because the district court did not address the issue of a COA, it is deemed
    denied. See 10th Cir. R. 22.1(C). Consequently, Barocio may not appeal the
    district court’s decision absent a grant of a COA by this court.
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    “that reasonable jurists could debate whether (or, for that matter, agree that) the
    petition should have been resolved in a different manner or that the issues
    presented were adequate to deserve encouragement to proceed further.” Slack v.
    M cDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted). M oreover, because
    Barocio raised these claims in his state court proceedings, a grant of habeas may
    only issue if those proceedings resulted in a decision that was “contrary to, or
    involved an unreasonable application of, clearly established Federal law,” or
    “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)(1)-(2).
    Barocio first asserts that his Fourth Amendment rights were violated when
    evidence was introduced against him at trial that was obtained from an illegal
    search of his aunt’s home. State prisoners are not entitled to federal habeas relief
    for alleged violations of the Fourth Amendment exclusionary rule “where the
    State has provided an opportunity for full and fair litigation of the Fourth
    Amendment claim.” Stone v. Powell, 
    428 U.S. 465
    , 494 (1976). Barocio
    challenged the admission of the evidence at a preliminary hearing, in two written
    suppression motions, at trial, and again on direct appeal. The OCCA determined
    that Barocio lacked standing to challenge the search. Barocio had ample
    opportunities to litigate his claim in state court, and is not entitled to habeas relief
    on this ground.
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    Next, Barocio claims that he made an oral agreement with an assistant
    district attorney to identify certain individuals in exchange for dismissing his case
    without prejudice or continuing it indefinitely. He contends that although he
    named two drug traffickers, the district attorney’s office did not perform its end
    of the bargain. After conducting a hearing on Barocio’s motion to enforce the
    agreement, the trial court found that there was no agreement and, alternatively,
    that Barocio had failed to show compliance with the alleged agreement. Barocio
    has offered no evidence to call into question the trial court’s determination, and
    on review of the record, we determine that the trial court’s conclusions were
    reasonable. Accordingly, Barocio has failed to allege a ground upon which relief
    can be granted.
    Barocio raises several claims regarding the quality of his representation,
    specifically that: (1) Trial counsel was ineffective; (2) Trial counsel had a
    conflict of interest; and (3) Appellate counsel was ineffective. His claims of
    ineffective assistance of trial counsel and conflict of interest w ere first raised in
    his application for post-conviction relief. Because Barocio failed to raise these
    claims on direct appeal, the OCCA concluded that, under Oklahoma law, they
    were waived. See 
    Okla. Stat. tit. 22, § 1086
    . Claims that are procedurally
    defaulted in state court are generally barred on habeas review. See Coleman v.
    Thompson, 
    501 U.S. 722
    , 750 (1991). However, when a state procedural rule
    would bar a claim of ineffective assistance of trial counsel, we will only apply
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    this bar if trial and appellate counsel were different, and the ineffectiveness claim
    can be resolved on the trial record. English v. Cody, 
    146 F.3d 1257
    , 1264 (10th
    Cir. 1998). In this case, Barocio had separate trial and appellate counsel, and
    after careful review of the record, we conclude it is sufficient to resolve his claim.
    Thus Barocio’s claims are barred, absent a showing of cause and actual prejudice
    or a fundamental miscarriage of justice. See Coleman, 501 U .S. at 750. Because
    Barocio has not met either standard, we determine that his claim of ineffective
    assistance of trial counsel is barred.
    Barocio has also failed to establish an actual conflict of interest w ith
    respect to his trial counsel. Because Barocio raised this claim for the first time on
    collateral attack, he “must demonstrate that an actual conflict of interest adversely
    affected his lawyer’s performance.” Cuyler v. Sullivan, 
    446 U.S. 335
    , 348
    (1980). “An actual conflict of interest exists only if counsel was forced to make
    choices advancing interests to the detriment of his client.” W orkman v. M ullin,
    
    342 F.3d 1100
    , 1107 (10th Cir. 2003) (quotation and alteration omitted).
    Barocio’s claim amounts to an allegation that his counsel had some tangential
    prior contact with his family members, and in no way establishes a present
    conflict requiring counsel to choose between Barocio’s interests and another’s.
    In addition, Barocio claims that in his direct appeal, his appellate counsel
    was ineffective in failing to raise the issue of the ineffectiveness of trial counsel.
    Applying the test in Strickland v. W ashington, 
    466 U.S. 668
    , 687 (1984), the
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    OCCA concluded that Barocio failed to show trial counsel’s deficiency.
    Appellate counsel’s failure to raise an issue does not constitute ineffective
    assistance if the issue itself is meritless. Hawkins v. Hannigan, 
    185 F.3d 1146
    ,
    1152 (10th Cir. 1999). W e agree with the OCCA, and determine that Barocio has
    failed to demonstrate that appellate counsel was ineffective.
    Finally, Barocio asserts that the cumulative effect of all alleged errors
    deprived him of his right to a fair trial. However, because he has failed to show
    any error in his case, there is no cumulative error. See Castro v. W ard, 
    138 F.3d 810
    , 832 (10th C ir. 1998) (“C umulative error analysis applies where there are tw o
    or more actual errors. It does not apply, however, to the cumulative effect of
    non-errors.” (quotation and citation omitted)).
    Because Barocio has failed to make “a substantial showing of the denial of
    a constitutional right,” 
    28 U.S.C. § 2253
    (c)(2), we DENY his application for a
    C OA .
    Entered for the Court
    Elisabeth A . Shumaker, Clerk
    By:
    Deputy Clerk
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