F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ALI M EHDIPOUR,
Petitioner - A ppellant, No. 05-6376
v. W . D. Oklahoma
LISA PARK ER ; R ON WA R D , (D.C. No. 03-CV-534-C)
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Ali M ehdipour was convicted in Oklahoma state court of distribution of
methamphetamine. On April 22, 2003, he filed an application under 28 U.S.C.
§ 2254 in the United States District Court for the W estern District of Oklahoma.
The m agistrate judge recommended that the application be denied. On
October 19, 2005, the district court adopted the recommendation. The district
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
court also denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)
(requiring C OA ). M r. M ehdipour now seeks a COA from this court, which we
deny.
I. B ACKGR OU N D
On M arch 28, 1997, M ichael Snow den, an agent with the Oklahoma Bureau
of Narcotics and Dangerous Drugs, purchased methamphetamine from
M r. M ehdipour at a sale arranged by confidential informant Harvey Stafford. O n
July 31, 1997, Agent Snow den arrested M r. M ehdipour without a warrant and
seized $1083.00 from him. The state sought the money in a civil forfeiture
action, which was dismissed with prejudice on August 14, 1998. In April 1999
M r. M ehdipour was tried and convicted of methamphetamine distribution in
Oklahoma state court. Agent Snow den had worn a wire transmitter during the
drug sale. Admitted into evidence at trial was an audiotape of (1) the
conversation during the sale and (2) the telephone conversation between
M r. M ehdipour and M r. Stafford arranging the sale.
M r. M ehdipour appealed his conviction to the Oklahoma Court of Criminal
Appeals (OCCA), which affirmed. He then filed in state court an application for
postconviction relief, which the district court denied. The OCCA affirmed the
denial.
On appeal M r. M ehdipour makes the follow ing claims: (1) the w arrantless
arrest violated his Fourth Amendment rights; (2) the admission of the audiotape
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violated the Fourth Amendment, the Federal Wiretap Act, and Oklahoma’s
wiretap law; (3) the admission of the audiotape was improper under state evidence
law because Agent Snow den, who identified M r. M ehdipour’s voice on the tape,
was not qualified as an expert in voice identification; (4) his trial counsel was
constitutionally ineffective in his litigation of the Fourth Amendment and
wiretap-law claims, and in failing to investigate the case adequately; (5) his due
process rights under Brady v. M aryland, 373 U.S. 83 (1963), were violated by the
admission without prior notice of incriminating evidence obtained in a separate
investigation conducted before his arrest; (6) his conviction was barred by
collateral estoppel; and (7) his trial counsel was ineffective for failing to request
an expert-witness-qualification hearing under Daubert v. M errell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999).
II. D ISC USSIO N
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires a “showing 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) (internal quotation marks
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omitted). In other w ords, the applicant must show that the district court’s
resolution of the constitutional claim was either “debatable or wrong.” Id.
The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when the applicant establishes that the
state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” or “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)(1), (2).
Under the “contrary to” clause, we grant relief only 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. Under the “unreasonable application” clause,
relief is provided only 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.
Thus w e may not issue a habeas w rit simply because we conclude in
our independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotations and
citations omitted). For those of M r. M ehdipour’s claims that were adjudicated on
the merits in state court, “AEDPA ’s deferential treatment of state court decisions
must be incorporated into our consideration of [his] request for COA.” Dockins
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v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Factual determinations of the state
court are presumed correct, and the habeas applicant has “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C
§ 2254(e)(1).
No reasonable jurist could dispute the district court’s denial of
M r. M ehdipour’s Fourth Amendment claims based on the warrantless arrest and
the admission of the audiotape. These claims are barred on habeas review by
Stone v. Powell, 428 U.S. 465 (1976). Nor could a reasonable jurist dispute the
district court’s denial of relief on the claims that the admission of the audiotape
violated federal and state law. Section 2254 does not provide relief for violations
of state law. See Estelle v. M cGuire, 502 U.S. 62, 67 (1991). And the recording
of M r. M ehdipour’s conversations was proper under the consent exception to the
Federal W iretap Act because on direct appeal the OCCA found that the other
party to the conversation consented, and M r. M ehdipour has not rebutted that
finding. See United States v. Faulkner, 439 F.3d 1221, 1224 (10th Cir. 2006)
(noting that the consent exception applies “where one of the parties to the
comm unication has given prior consent to . . . interception [of a wire, oral, or
electronic communication]” (quoting 18 U.S.C. § 2511(2)(d))).
M r. M ehdipour makes several claims of ineffective assistance of trial
counsel related to the w arrantless arrest and admission of the audiotape. These
claims are not precluded by Stone. See Kimmelman v. M orrison, 477 U.S. 365,
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382-83 (1986). Strickland v. Washington, 466 U .S. 668, 687 (1984), requires a
defendant to support an ineffectiveness claim by showing “that counsel’s
performance was deficient” and that “the deficient performance prejudiced the
defense[, which] requires showing that counsel’s errors w ere so serious as to
deprive the defendant of a fair trial.” M r. M ehdipour complains that trial counsel
did not interview the arresting officers or a neighbor who apparently had
knowledge about the warrantless arrest. He states that if counsel had done so, he
would have discovered additional evidence that the warrantless arrest was
improper. He also complains that counsel failed to interview M r. Stafford, the
confidential informant, and that during such an interview counsel would have
learned that M r. Stafford had not consented to the recording of his conversation
with M r. M ehdipour and that M r. Stafford had never purchased drugs from
M r. M ehdipour or spoken with him on the telephone. Finally, he argues that
counsel elicited certain damaging testimony at trial as a result of the failure to
investigate the case properly.
The magistrate judge recommended rejecting M r. M ehdipour’s claim that
counsel’s failure to interview the witnesses caused him to elicit damaging
testimony at trial. The magistrate judge stated that in light of the overwhelming
evidence of guilt, M r. M ehdipour had not shown that he had been deprived of a
fair trial. The magistrate judge also recommended rejecting M r. M ehdipour’s
claim regarding his counsel’s failure to interview M r. Stafford, stating that he had
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failed “to show how th[e] verdict could have been changed by any testimony from
Stafford.” Report at 26. Both recommendations were adopted by the district
court and would not be disputed by reasonable jurists. As for M r. M ehdipour’s
claim regarding failure to interview the arresting officers and his neighbor, he did
not raise the claim in district court, so we will not consider it. See Simmat v. U.S.
Bureau of Prisons, 413 F.3d 1225, 1240 (10th Cir. 2005) (we will not address
issues raised for the first time on appeal).
M r. M ehdipour asserts that he was denied his due-process rights under
Brady, when Agent Snowden testified, without prior notice to M r. M ehdipour,
about evidence regarding M r. M ehdipour that was obtained in another
investigation before his arrest. But M r. M ehdipour did not raise Brady in district
court, so we will not address this argument. See Simmat, 413 F.3d at 1240.
M r. M ehdipour also argues that his conviction is improper under the
collateral-estoppel doctrine because in the forfeiture action the state district court
had ruled in his favor, holding that the money was seized in violation of the
Fourth and Fourteenth Amendments. M r. M ehdipour argues that “since the
[money] was seized on the same facts as used in the criminal accusation, the state
was barred from re-trying the action in a criminal proceeding under collateral
estoppel.” Aplt. Br. at 30. But in order for collateral estoppel to apply, the
following conditions must be met:
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(1) the issue previously decided is identical with the one presented in
the action in question, (2) the prior action has been finally
adjudicated on the merits, (3) the party against w hom the doctrine is
invoked was a party or in privity with a party to the prior
adjudication, and (4) the party against whom the doctrine is raised
had a full and fair opportunity to litigate the issue in the prior action.
United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992) (internal quotation
marks omitted). The magistrate judge recommended dismissal of
M r. M ehdipour’s collateral-estoppel claim on the ground that the record
supported the OCCA’s finding that
the issue at stake in the civil forfeiture action (whether drug dealing
was the likely source of the $1083 taken from [M r. M ehdipour] when
he was arrested) is totally distinct from the issue at stake in the
criminal case (whether he sold 13.1 grams of methamphetamine to
Agent Snowden four months earlier).
R. Doc. 31 at 15 (internal quotation marks omitted). W e agree. Reasonable
jurists w ould not dispute that the Oklahoma court’s ruling was neither contrary to
nor an unreasonable application of federal law.
Finally, M r. M ehdipour makes an ineffective-assistance-of-counsel claim
based on his counsel’s failure to request a hearing under Daubert and Kum ho Tire
Co. He argues that counsel should have requested such a hearing because neither
“the trial court nor Agent Snow den qualified as technical or other specialized
knowledge to scientific testimony to the identity of voice found on the
audiotape.” A plt. Br. at 36. But M r. M ehdipour did not raise these claims in
district court, so we will not address them. See Simmat, 413 F.3d at 1240.
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III. C ON CLU SIO N
W e DENY a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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