Cudjo v. Ward ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLARD KEITH CUDJO,
Petitioner-Appellant,
v. No. 99-7083
(D.C. No. 97-CIV-608-B)
RON J. WARD, Warden, (E.D. Okla.)
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This order and judgment is not binding precedent, except under the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 judge’s recommendation, denied the petition, and declined to grant
a certificate of appealability (COA). We deny petitioner’s 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). Petitioner’s 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;
3. Petitioner was denied the effective assistance of trial and
appellate counsel;
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4. Petitioner’s 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. See id. at 898.
In addition, the Oklahoma cases he relies on have been overruled. See Parker v.
State , 917 P.2d 980, 986 and n.4 (Okla. Crim. App. 1996) (overruling earlier
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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 Appellant’s Br. at 1-5, he does not take issue with
the state court’s 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 court’s 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 Appellant’s Br. at 6-14. This is
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insufficient to meet the requirements of § 2254(d). Under Jackson , the evidence
must be viewed in the light most favorable to the prosecution. 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 petitioner’s claims in light of
the requirements of Strickland v. Washington , 466 U.S. 668 (1984), which
requires a showing that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. See id. at 687.
The district court affirmed the magistrate judge’s determination that the
Court of Criminal Appeals correctly applied the Strickland standard and that
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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 court’s 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 judge’s findings and recommendation and the district
court’s order, we deny the COA for substantially the reasons set forth in the
magistrate judge’s findings and recommendation.
Application for COA DENIED; appeal DISMISSED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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