El Mansouri v. Jones, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

ALAMI EL MANSOURI,

Petitioner-Appellant,



v.

No. 07-6029

JUSTIN JONES,

Respondent-Appellee.

(D.C. No. CIV-06-0669-F)

(W. D. Oklahoma)

ORDER DENYING CERTIFICATE OF APPEALABILITY
href="#N_*_" name="txt*">(*)

Before BRISCOE, EBEL, and

McCONNELL, Circuit Judges.

Alami El Mansouri ("El Mansouri"), an Oklahoma state prisoner appearing pro se,

seeks a certificate of appealability ("COA") to appeal the district court's dismissal of his

28 U.S.C. 2254 habeas petition. Because El Mansouri fails to make "a substantial

showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), we deny the

COA and dismiss the matter.

A jury convicted El Mansouri of multiple state law offenses, including among

others attempted robbery, assault and battery, and kidnapping, arising from a home-invasion

attempted robbery in November of 2001. He received a sentence of over one

hundred years' imprisonment. El Mansouri appealed his conviction to the Oklahoma

Court of Criminal Appeals ("OCCA"). The OCCA reversed his conviction in part,

dismissing two counts on grounds of double punishment, and affirmed his remaining

convictions. El Mansouri then sought additional state post-conviction relief, which was

denied by the state district court and affirmed by the OCCA.

El Mansouri filed a petition for federal habeas relief pursuant to 28 U.S.C. 2254,

which raised six grounds for relief, including: (1) ineffective assistance of appellate

counsel; (2) ineffective assistance of trial counsel; (3) due process violations based on an

in-court identification; (4) a Brady
name="txt1a">(1) violation resulting from the state's withholding of an

exculpatory videotape; (5) a double jeopardy violation; and (6) a Confrontation Clause

violation relating to hearsay statements admitted at trial.
name="txt2a">(2) The federal district court

denied El Mansouri's habeas petition on January 31, 2007, after adopting the magistrate

judge's report and recommendation ("R&R"). On February 27, 2007, the district court

denied El Mansouri a COA to appeal the denial of his habeas petition.

This court can issue a COA only "if the applicant has made a substantial showing

of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). "A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district

court's resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further." Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). This determination "requires an overview of the

claims in the habeas petition and a general assessment of their merits." Id. at 336. El

Mansouri is not required to prove the merits of his case, but he must nonetheless

demonstrate "something more than the absence of frivolity or the existence of mere good

faith" on his part. Id. at 338 (quotations omitted).

Under § 2254, this court may grant a COA on a claim that was adjudicated on the

merits in state court only if the state court's 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 proceedings." 28 U.S.C. §

2254(d)(1)-(2). After careful review of El Mansouri's application, the decisions of the

OCCA, the magistrate judge's R&R, the district court's order, and the material portions

of the record, we conclude that El Mansouri's claims are without merit.

El Mansouri's first ground for relief claims he was deprived of his Sixth

Amendment right to effective assistance of counsel because his appellate counsel failed

to raise claims of ineffective assistance of trial counsel on direct appeal. His second

ground asserts that his trial counsel was ineffective for failing to: (1) challenge the

joinder of his offenses pursuant to Okla. Stat. Ann. tit. 22, § 404 (2003); (2) request a

photo-lineup prior to trial and object to the in-court identification of El Mansouri; and (3)

investigate the contents of a videotape and allege a Brady violation by the State. Where,

as here, a petitioner's claim of appellate ineffectiveness is based on counsel's failure to

raise a particular issue, the court must consider the merits of the omitted issue. Cargle v.

Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). If the omitted issue is meritless, "its

omission will not constitute deficient performance." Id. Because the OCCA considered

El Mansouri's claims of ineffective assistance of appellate counsel on the merits and

applied the proper standard articulated in Strickland v. Washington,
name="txt3a">(3) we will determine

whether the OCCA's decision was contrary to or an unreasonable application of clearly

established federal law.

El Mansouri alleged three errors by trial counsel that he claims appellate counsel

should have raised on direct appeal. A consideration of the merits of each of these

alleged trial counsel errors reveals that they lack merit. First, in 1968 the Oklahoma

Legislature passed Okla. Stat. Ann. tit. 22, § 436, which repealed § 404, thereby

permitting the "joinder of separately punishable offenses . . . if the separate offenses arise

out of one criminal act or transaction, or are part of a series of criminal acts or

transaction." Glass v. State, 701 P.2d 765, 768 (Okla. Crim. App. 1985). Because "a

court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance," and El Mansouri's trial counsel's decision

not to request a pre-trial photographic lineup and to conduct a thorough cross-examination of the

identifying witness rather than challenge the identification directly are

actions that "might be considered sound trial strategy," this claim also fails. Strickland,

466 U.S. at 689. Finally, El Mansouri failed to establish that the videotape in question

actually exists, and even assuming it does, that the result of his trial would have been

different. Because El Mansouri's trial counsel was not deficient, his appellate counsel

was not ineffective for failing to raise these claims on direct appeal and his first and

second grounds for relief are without merit.

In his third ground for relief, El Mansouri claims his due process rights were

violated as a result of the in-court identification by the victim-witness. Because El

Mansouri raised this claim for the first time in state post-conviction proceedings, the

OCCA determined that the claim was procedurally barred pursuant to Okla. Stat. Ann.

tit. 22, § 1086 (2003) and affirmed denial of post-conviction relief on this claim. This

court has determined that § 1086 is an independent and adequate ground for denying

habeas relief and therefore we cannot review this claim unless El Mansouri can

demonstrate both "'cause for the default and actual prejudice as a result of the alleged

violation of federal law.'"(4) Ellis v.

Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002)

(quoting Coleman v. Thompson, 501 U.S. 722 , 750 (1991)).

The OCCA recognized that El Mansouri asserted ineffective assistance of

appellate counsel as the cause for his procedural default, but determined that El Mansouri

failed to show that his appellate counsel's performance was deficient or that the outcome

of his trial and appeal would have been different. Because we have already determined

that El Mansouri's ineffective assistance of counsel claims are without merit, he has

failed to overcome procedural default on this claim and we cannot review it. El

Mansouri's fourth ground for relief asserts a stand alone Brady claim in regards to the

allegedly exculpatory videotape. Because we have already determined, in the context of

his effectiveness of counsel claims, that El Mansouri's Brady claim has no merit, we

conclude that the petitioner's fourth ground for relief was properly denied.

In ground five, El Mansouri claims that his multiple convictions violate the

Double Jeopardy Clause of the Fifth Amendment. El Mansouri asserted this claim on

direct appeal and the OCCA reversed his conviction in part and dismissed two of the

counts against him (Counts 7 and 12), but affirmed the rest of the convictions. In his

habeas petition, El Mansouri claims his remaining convictions for "kidnapping, assault,

and attempted robbery crimes" violate double jeopardy. See Brief in Support of Petition

for Writ of Habeas Corpus, Doc. 2 at 15. The OCCA determined that other than Counts

2 and 7, none of the other counts against El Mansouri constituted double jeopardy or

double punishment.

The Double Jeopardy Clause protects against multiple punishments for the same

offense. Lucero v. Kerby, 133 F.3d 1299, 1316 (10th Cir. 1998). Because the record

shows that El Mansouri's conviction for attempted robbery is not subject to a double

jeopardy challenge, his challenge is limited to his convictions for Assault and Battery

with a Dangerous Weapon (Count 10) and Kidnapping for Extortion (Count 11) against

the same victim. Because the assault and kidnapping offenses require different factual

elements of proof, El Mansouri's convictions do not violate the Double Jeopardy Clause.

Id. (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932) ("[W]here

the same

act or transaction constitutes a violation of two statutory provisions, the test to be applied

to determine whether there are two offenses or only one is whether each provision

requires proof of an additional fact which the other does not.")).

El Mansouri also argues that his convictions violate Oklahoma's statutory

prohibition against double punishment, but because this involves purely a matter of state

law, it cannot serve as grounds for federal habeas relief. See Estelle v.

McGuire, 502

U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.").

Finally, in his sixth ground for relief, El Mansouri claims that his Confrontation

Clause and due process rights were violated when the trial court permitted certain

hearsay testimony from a State witness. The OCCA considered this argument on direct

appeal and concluded that this hearsay testimony violated El Mansouri's Confrontation

Clause rights, but that this error was harmless. The Confrontation Clause bars the

introduction of testimonial hearsay against a criminal defendant, unless the declarant is

unavailable and the accused has had a prior opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Because the OCCA did not

expressly apply Crawford in reaching its decision or discuss whether the statements at

issue were testimonial in nature, we will conduct an independent review of this issue

under which we will refuse "relief unless the state court's result is legally or factually

unreasonable." Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999) (noting that

independent review is more deferential than de novo review because we owe "deference

to the state court's result, even if its reasoning is not expressly stated") (emphasis in

original).(5) Because none of the statements

El Mansouri complains of qualify as

testimonial hearsay offered against him under Crawford and the OCCA's determination

on this issue was not legally or factually unreasonable, this ground for relief also fails.

El Mansouri claims that the admission of these hearsay statements violated his due

process rights to a fundamentally fair trial and requests an evidentiary hearing. Even

assuming there was some merit to his due process argument, the evidence presented

against El Mansouri at trial is sufficient to render the violation harmless. See Patton

v.

Mullin, 425 F.3d 788, 800 (10th Cir. 2005) (noting that "in a habeas proceeding, any trial

errors will be deemed harmless unless they have a substantial and injurious effect or

influence in determining the verdict"). Because none of his claims have merit, El

Mansouri is not entitled to an evidentiary hearing. See Anderson v. Attorney Gen.

of

Kan., 425 F.3d 853, 858-59 (10th Cir. 2005) (noting that an evidentiary hearing is

unnecessary if the claim can be resolved on record).

We DENY the COA and DISMISS the matter.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.This order is not binding precedent, except

under the doctrines of law of the case,

res judicata, and collateral estoppel.

1. Brady v. Maryland, 373 U.S. 83,

87 (1963). The prosecution violates a

defendant's due process rights when it fails to disclose evidence favorable to the

defendant that was material to either guilt or punishment. Id.

2. El Mansouri raised grounds five and six on

direct appeal of his conviction. He

raised grounds one through four for the first time in state post-conviction proceedings.

3. 466 U.S. 668, 687 (1984). To prevail on

an ineffective assistance of counsel

claim, a petitioner must demonstrate that his counsel's performance was deficient and

prejudiced his defense. Id. Counsel's representation must fall below "an objective

standard of reasonableness." Id. at 688.

4. We will also "overlook procedural default

in rare cases when the failure to

consider a petitioner's claims would produce a 'fundamental miscarriage of justice,' on

the ground that the petitioner is actually innocent of the charged crime." Ellis, 302 F.3d

at 1186 n.1. However, El Mansouri does not make this argument.

5. El Mansouri's claim would fail even if we

applied de novo review because the

statements at issue do not violate Crawford.

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