F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 24 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
JEFFREY S. BAGBY,
Petitioner - Appellant,
v. No. 02-5078
(D.C. No. 00-CV-170-B)
JAMES SAFFLE, Director of the (N.D. Oklahoma)
Oklahoma Department of Corrections,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to decide this case on the briefs without oral argument. See Fed. R.
App. P. 34(a)(2)(C) and 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This order and judgment is not binding precedent, except under the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.
Jeffrey Bagby, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the federal district court’s denial of his 28 U.S.C. §
2254 habeas corpus petition. Because Mr. Bagby has failed to make “a
substantial showing of the denial of a constitutional right” as required by 28
U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.
In an Oklahoma state court, Mr. Bagby was charged with four counts: (1)
trafficking in illegal drugs; (2) receiving proceeds from illegal drug activity; (3)
failing to obtain a drug stamp; and (4) using a telecommunications device in a
drug transaction, all after former conviction of a felony. After a jury trial, he was
convicted of counts one and four. He was sentenced to 32 years’ imprisonment.
Mr. Bagby, represented by counsel on direct appeal to the Oklahoma Court
of Criminal Appeals (“OCCA”), raised the following eight claims: (1) deprivation
of the right to a fair trial because the jury foreman told the trial judge that the
foreman was related to the deputy sheriff; (2) double jeopardy violation resulting
from the similarity of counts one and four (drug trafficking and use of
telecommunications device in a drug transaction); (3) improper admission of an
audio tape after admission of videotape of the same incident; (4) prosecutorial
misconduct during closing argument resulting in the denial of a fair and impartial
trial; (5) a violation of Batson v. Kentucky, 476 U.S. 79 (1986), through the
exclusion of a black juror on voir dire; (6) deprivation of the right to a fair trial
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through the modification of uniform jury instructions; (7) deprivation of the right
to a fair trial through the admission of evidence of prior drug sales; and (8) error
by the trial court in prohibiting defense counsel from fully cross-examining a
government witness. The OCCA affirmed.
Proceeding pro se, Mr. Bagby then filed for, and was denied,
post-conviction relief by the Oklahoma trial court, where he alleged: (1)
violations of the Fifth, Sixth, and Fourteenth Amendments because the
government informant’s testimony was secured after the informant was promised
something of value in exchange for her testimony; and (2) ineffective assistance
of trial and appellate counsel for failing to raise the first claim, that informant’s
testimony was received in exchange for something of value. The state trial court
denied Mr. Bagby’s request for relief. The OCCA remanded on the first claim,
finding that the issue was properly preserved. The trial court again denied relief
and the OCCA affirmed.
Mr. Bagby then filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 asserting: (1) violations of the Fifth, Sixth, and Fourteenth
Amendments because the government informant’s testimony was secured by
promises for something of value in exchange for her testimony; (2) ineffective
assistance of counsel for failing to raise the above informant claim; (3)
deprivation of the right to a fair trial because the jury foreman told the trial judge
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that the foreman was related to the deputy sheriff; (4) double jeopardy violation
resulting from similarity of counts one and four; (5) undue prejudice from
admission of the audio tape; (6) prosecutorial misconduct during closing
argument, resulting in the denial of a fair and impartial trial; (7) a Batson
violation; (8) deprivation of the right to a fair trial through the modification of the
uniform jury instructions; (9) deprivation of the right to a fair trial by admission
of evidence of prior drug sales; and (10) violation of his right to cross-
examination. The district court, in a well-reasoned order, considered each of Mr.
Bagby’s claims, and denied each on the merits.
On appeal, Mr. Bagby raises six contentions: (1) violations of the Fifth,
Sixth, and Fourteenth Amendments because the government informant’s testimony
was secured by promises for something of value in exchange for testimony; (2)
deprivation of the right to a fair trial because the jury foreman told the trial judge
that the foreman was related to the deputy sheriff; (3) double jeopardy violation
from the similarity of counts one and four; (4) deprivation of the right to a fair
trial through the modification of the uniform jury instructions; (5) deprivation of
the right to a fair trial through the improper admission of evidence of prior drug
sales; and (6) violation of his right to full and fair cross-examination.
To obtain a COA so that he can appeal the district court’s denial of his §
2254 habeas petition, Mr. Bagby must make a “substantial showing of the denial
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of a constitutional right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2).
He may make this showing by demonstrating that the issues raised are debatable
among jurists, a court could resolve the issues differently, or that the questions
presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473,
483-84 (2000).
Upon thorough consideration of Mr. Bagby’s brief and contentions on
appeal and upon de novo review of the district court’s detailed order and the
entire record on appeal, we conclude that Mr. Bagby has demonstrated no reason
for us to conclude that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. In fact, we are
persuaded that the reasoning of the district court is sound and we agree that the
OCCA’s conclusions were not contrary to, and did not involve an unreasonable
application of, clearly established federal law. Accordingly, we DENY the
application for a COA and DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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