F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
ELGIN MARCORA BROWN,
Petitioner - Appellant,
No. 02-6041
v. D.C. No. CIV-01-1121-R
(W.D. Oklahoma)
RANDALL G. WORKMAN, Warden;
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-Appellant Elgin Marcora Brown, a state inmate appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order denying him relief on his petition for a writ of habeas corpus.
Because Mr. Brown has not made “a substantial showing of the denial of a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and
dismiss the appeal.
On November 6, 1998, a jury convicted Mr. Brown of Unlawful Trafficking
of Cocaine (Count I), Unlawful Possession of Marijuana with Intent to Distribute
(Count II), Felonious Possession of a Firearm (Count III), Unlawful Possession of
a Firearm in the Commission of a Felony (Count IV), Unlawful Possession of a
Firearm with an Altered Serial Number (Count V), Racketeering (Count VI), and
Unlawful Possession of Paraphernalia (Count VII), all after former conviction of
two or more felonies. On direct appeal, the Oklahoma Court of Criminal Appeals
(“OCCA”) reversed Mr. Brown’s convictions on Counts VI and VII, but affirmed
the convictions and sentences on the other five counts. This resulted in
consecutive sentences of: life imprisonment without parole and a $25,000 fine
on Count I, twenty years imprisonment and a $20,000 fine on Count II, twenty
years imprisonment on Count III, thirty years imprisonment on Count IV, and
twenty-five years on Count V. Thereafter, Mr. Brown unsuccessfully sought post-
conviction relief in state district court; the OCCA affirmed the denial of post-
conviction relief.
On July 17, 2001, Mr. Brown filed his habeas petition pursuant to 28
U.S.C. § 2254 and a motion for evidentiary hearing and appointment of counsel.
The matter was referred to a magistrate judge who in a report and
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recommendation suggested that the petition be denied, along with the requests for
an evidentiary hearing and appointment of counsel. R. Doc. 12. After
considering objections to the report, the district court adopted it. R. Doc. 14.
On appeal, Mr. Brown argues that the district court’s factual determinations
justifying the denial of his claims of ineffective assistance of counsel,
insufficiency of the evidence, and the denial of his request for an evidentiary
hearing and appointment of counsel are clearly erroneous. Aplt. Br. 16 & 16.e.
First, he claims that appellate counsel was ineffective for not arguing that trial
counsel was ineffective for 1) failing to challenge the validity of the “no knock”
warrant authorizing the search of his apartment, Aplt. Br. at 16-16.a, and 2)
stipulating to the results of a chemist’s report which Mr. Brown claims suffered
from chain of custody deficiencies. Aplt. Br. at 16.b. Second, Mr. Brown claims
that the evidence at trial was insufficient to sustain his convictions for possession
of a firearm with an altered serial number, possession of marijuana with intent to
distribute, and possession of a firearm during the commission of a felony. Aplt.
Br. at 16, 16.c-16.d. Third, Mr. Brown argues that the district court should have
appointed counsel and granted him an evidentiary hearing. Aplt. Br. at 16.e.
Because Mr. Brown filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the
provisions of that act are applicable. See Lindh v. Murphy, 521 U.S. 320, 326-27
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(1997). Pursuant to AEDPA, we may not grant a habeas petition with respect to
any claim adjudicated on the merits in state court “unless the adjudication of the
claim— (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) 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). A state court decision is
contrary to clearly established federal law under § 2254(d)(1) “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.” Williams v. Taylor, 529
U.S. 362, 413 (2000). A state court decision is an unreasonable application of
federal law under § 2254(d)(2) “if the state court identifies the correct governing
legal principle from [the Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.” Id.
We have carefully reviewed the district court’s order as well as the report
and recommendation of the magistrate judge. We are satisfied that the many
issues raised by Mr. Brown were correctly analyzed. He has not met the burdens
imposed by AEDPA and for substantially the same reasons given by the district
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court we DENY a COA, DENY leave to proceed in forma pauperis, and DISMISS
the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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