Mehdipour v. Parker

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-2- 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

-3- 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

-4- 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,

-5- 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

-6- 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:

-7- (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.

-8- 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

-9-