FILED
United States Court of Appeals
Tenth Circuit
February 18, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GREGORY PAUL STEPHENS,
Petitioner - Appellant, No. 10-6017
v. (W.D. Oklahoma)
JUSTIN JONES, Director, (D.C. No. 5:08-CV-01145-D)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Gregory Paul Stephens is a prisoner of the State of Oklahoma who filed an
application for relief under 28 U.S.C. § 2254 in the United States District Court
for the Western District of Oklahoma. The district court denied relief, and
Mr. Stephens filed an application for a certificate of appealability (COA) in this
court. See 28 U.S.C. § 2253(c) (requiring COA to appeal denial of application)
In an order dated June 25, 2010, this court granted a COA to Mr. Stephens with
respect to several claims raised in his application for a certificate. See Stephens
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
v. Jones, 385 F. App’x 798 (10th Cir. 2010) (unpublished). These claims related
to the attempted videotaping of his postarrest interrogation. According to the
officer who conducted the interrogation, he destroyed the videotape after
determining that it had not recorded the interrogation. Mr. Stephens contended
that he was denied due process by the destruction of the videotape and that
testimony concerning the interrogation should have been excluded from trial, that
his trial counsel was ineffective in not seeking a jury instruction permitting an
adverse inference from the destruction and in not raising the destruction issue as a
due-process claim, and that his appellate counsel (who had also been trial
counsel) was ineffective in not raising the destruction issue as a due-process
claim.
We appointed the federal public defender for the District of Colorado to
file a supplemental opening brief on behalf of Mr. Stephens. The public defender
submitted a thorough, and quite helpful, 39-page brief in accordance with Anders
v. California, 386 U.S. 738 (1967), concluding that Mr. Stephens has no
nonfrivolous issues and requesting permission to withdraw as counsel. In
essence, the public defender determined that Mr. Stephens could not show that he
suffered any prejudice from destruction of the tape or the alleged deficient
conduct of his attorney.
In response to the public defender’s brief, Mr. Stephens has submitted a
lengthy supplemental brief, much of which tracks the public defender’s brief.
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Although he disputes the contention that he cannot show prejudice, we are not
persuaded.
Accordingly, we AFFIRM the district court’s denial of these claims by
Mr. Stephens. We GRANT the public defender’s request for permission to
withdraw.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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