F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 29 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS RAY WEAVER, JR.,
Petitioner-Appellant,
v. No. 00-6386
(D.C. No. 97-CV-1443-R)
RON WARD, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
Thomas Ray Weaver, Jr. appeals from the district court’s denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This court
previously granted petitioner a blanket certificate of appealability for all issues he
raises on appeal, see § 2253(c), and respondent filed a response brief. On further
consideration of the merits of petitioner’s arguments, we affirm the district
court’s denial of the petition.
In 1988 petitioner was convicted in an Oklahoma state court of rape,
kidnapping, robbery and two counts of sodomy, after former conviction of two or
more felonies, and was sentenced to more than 200 years’ imprisonment. His
convictions and sentences were affirmed on appeal, and his request for state
post-conviction relief was denied. In September 1997, he filed this habeas
petition in the district court asserting a variety of challenges to his convictions. A
magistrate judge recommended that the petition be denied. Rejecting petitioner’s
objections to the magistrate judge’s report, the district court adopted the report
and denied the petition. On appeal, petitioner raises four issues. Because
petitioner proceeds pro se, as he did in the district court, we construe his brief and
pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). The
district court did not hold an evidentiary hearing, so our review of its decision is
de novo. See United States v. Powell , 159 F.3d 500, 500 (10th Cir.1998).
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Petitioner first contends that he was denied his right to a hearing on his
state application for post-conviction relief and that he was thereby denied his
right to due process. As the district court noted, no federal constitutional
provision requires a state to provide post-conviction review, and any error in this
regard is simply a matter of state law and not cognizable on federal habeas
review. See Sellers v. Ward , 135 F.3d 1333, 1339 (10th Cir. 1998) (“[B]ecause
the constitutional error [petitioner] raises focuses only on the State’s post-
conviction remedy and not the judgment which provides the basis for his
incarceration, it states no cognizable federal habeas claim.”). We therefore reject
this argument.
Petitioner next contends that he was denied effective assistance of trial
counsel because a police witness threatened counsel, thus creating a conflict of
interest between counsel’s concern for his own safety and his defense of
petitioner. The district court concluded that this claim was procedurally barred
because state courts held he could have raised it on direct appeal, see English v.
Cody , 146 F.3d 1257, 1264 (10th Cir. 1998), and petitioner does not argue that
this conclusion is incorrect. To the extent that petitioner contends appellate
counsel should have raised this issue on direct appeal, either to show cause to
excuse the procedural bar or as a separate claim of ineffective appellate counsel,
petitioner’s contention fails because he has not demonstrated that the claim had
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any merit. After the conflict issue was raised in the trial court, the judge
concluded that he thought counsel could set aside his personal concerns and
provide adequate representation. Counsel proceeded with the defense, and
petitioner has not shown that there was an actual conflict or how the alleged
conflict detrimentally affected his counsel’s performance. See United States v.
Litchfield , 959 F.2d 1514, 1518 (10th Cir. 1992) (“In order to establish an actual
conflict, defendant must demonstrate as a threshold matter that the defense
attorney was required to make a choice advancing his own interests to the
detriment of his client’s interests.”) (quotation omitted).
Petitioner raises several issues concerning his appellate representation.
First, he contends that his appointed appellate counsel was ineffective for failing
to raise a variety of issues on direct appeal: he was denied compulsory process of
witnesses; illegally obtained evidence was used against him; he was subjected to
an overly suggestive and improper lineup; he was charged on a multiple count
indictment for what was essentially unitary conduct; the prosecution failed to
disclose exculpatory evidence; and evidence of his prior criminal convictions was
improperly introduced during the guilt phase of his trial. He also contends that
his retained appellate counsel was ineffective because the Oklahoma Court of
Criminal Appeals rejected his brief due to counsel’s violation of a court rule. The
district court thoroughly analyzed these claims and held that, since none of the
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issues petitioner claims should have been raised were meritorious, petitioner’s
two counsel were not ineffective because he suffered no prejudice from their
failure to raise the issues on appeal. See United States v. Cook , 45 F.3d 388,
392-93 (10th Cir. 1995). On this appeal, petitioner reasserts his contentions in
only the most general and conclusory terms and makes no attempt to show how he
was prejudiced by counsel’s performance or how the district court erred.
Although petitioner is representing himself, we will not construct his arguments
for him. See Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991).
Moreover, we have reviewed the arguments petitioner presented in the district
court, and we see nothing undermining the district court’s analysis.
Finally, petitioner contends that the district court did not interpret his
claims under the liberal standard accorded pro se litigants under Haines . To the
contrary, the district court went out of its way to liberally construe petitioner’s
pleadings, to the extent that it addressed ineffective appellate counsel claims that
petitioner asserted only in his application for state post-conviction relief. This
argument is totally without merit.
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The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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