Dennis v. Poppel

Decision Date18 August 2000
Docket NumberNo. 99-6294,99-6294
Citation222 F.3d 1245
Parties(10th Cir. 2000) HENRY LEE DENNIS, Petitioner-Appellant, v. DAYTON POPPEL; JAMES L. SAFFLE, Respondents-Appellees
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 98-CV-335-A) [Copyrighted Material Omitted] Mac Oyler, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Lori S. Carter (W.A. Drew Edmondson, Attorney General, with her on the brief), Assistant Attorney General, Oklahoma City, Oklahoma, for Respondents-Appellees.

Before BRORBY, McKAY and BRISCOE, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Henry Lee Dennis, an Oklahoma state prisoner, appeals an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Dennis' appeal centers on his contention the State of Oklahoma impermissibly tried and convicted him of four offenses stemming from a single transaction involving the same rock of cocaine, in violation of the Double Jeopardy Clause and an Oklahoma statute prohibiting multiple punishments for a single act. We exercise jurisdiction pursuant to 28 U.S.C. § 2253 and affirm.


The facts surrounding Mr. Dennis' sale and possession of a controlled dangerous substance are undisputed. County and city enforcement officials involved in an undercover narcotic investigation used an informant, Charles Shaw, to arrange a drug deal with Mr. Dennis. Under the officers' supervision, Mr. Shaw contacted Mr. Dennis in Vernon, Texas, and arranged to meet him at a designated place in Frederick, Oklahoma, to purchase "a half" or one-half ounce of rock cocaine. At the designated meeting spot, Mr. Shaw gave Mr. Dennis $450 in exchange for a large, ten-gram rock of "cocaine base" scored into four sections. After selling the rock cocaine to Mr. Shaw, Mr. Dennis drove away. Officers immediately followed Mr. Dennis' vehicle and pulled him over. In Mr. Dennis' vehicle, officers discovered two rocks consisting of 20.7 grams of "cocaine base" wrapped in a cellophane package. Each piece was scored into four sections. Mr. Dennis' vehicle also contained a knife with a blackened edge, which an officer testified Mr. Dennis probably heated to score the rock cocaine into multiple pieces for sale. Neither the rock cocaine sold to Mr. Shaw nor that found in Mr. Dennis' vehicle had tax stamps affixed.

A jury convicted Mr. Dennis of two counts of trafficking in illegal drugs, under Okla. Stat. tit. 63, § 2-415, and set his punishment at life in prison and a $100,000 fine for each count. The jury also convicted him of two counts of possession of cocaine base without proper tax stamps affixed, under the Oklahoma Controlled Dangerous Substance Tax Act, Okla. Stat. tit. 68, §§ 450.1 - 450.9, setting his punishment at ten years in prison for each count. Based on the jury's recommendation, the trial court sentenced Mr. Dennis to two terms of life in prison together with two $100,000 fines, and two ten-year sentences all to run consecutively.


The Oklahoma Court of Criminal Appeals affirmed Mr. Dennis' conviction on direct appeal. Thereafter, Mr. Dennis unsuccessfully sought state habeas post-conviction relief at the district and appellate court levels. Following his unsuccessful state litigation, Mr. Dennis filed his federal habeas corpus petition raising eight grounds for habeas relief. Mr. Dennis based six of his claims on double jeopardy or related grounds. The thrust of these claims centered on his suggestion he can only receive one conviction, not four convictions, for his activities involving the same rock of cocaine.1

The district court referred Mr. Dennis' petition to a magistrate judge who recommended denial of Mr. Dennis' petition. In making this recommendation, the magistrate judge began by reviewing the procedural disposition of each of Mr. Dennis' claims. First, the magistrate judge determined Mr. Dennis raised only two of the eight claims in his direct state appeal.2 As to the remaining six issues, the magistrate judge determined Mr. Dennis raised them for the first time in his state application for post-conviction relief. The magistrate judge noted the Oklahoma Court of Criminal Appeals denied Mr. Dennis post-conviction relief in a summary decision, rejecting two of his claims under the principles of res judicata and five of his claims for procedural default. However, the Oklahoma court did consider and reject Mr. Dennis' ineffective assistance claim on the merits, holding he failed to present a claim constituting a "dead bang winner."

After determining Mr. Dennis must show cause for his state procedural default and actual prejudice therefrom, the magistrate judge proceeded to the merits of Mr. Dennis' claims based on his ineffective assistance of counsel claim, recognizing the ineffective assistance claim may constitute cause for procedural default in state court. Following a determination Mr. Dennis' underlying claims lacked merit, the magistrate judge held no prejudice resulted from Mr. Dennis' counsel's failure to raise them either at trial or on direct appeal. After reviewing Mr. Dennis' objections to the magistrate judge's determinations, the district court adopted the magistrate judge's Report and Recommendation, denied Mr. Dennis' petition for a writ of habeas corpus, and denied his request for a certificate of appealability.


On appeal, Mr. Dennis raises the same eight issues addressed by the district court and requests a certificate of appealability for the purpose of reviewing the merits of his appeal. In order for this court to grant a certificate of appealability and proceed to the merits of Mr. Dennis' appeal, he must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here, the "district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, ___ U.S. ___, ___, 120 S. Ct. 1595, 1604 (2000). This court determined Mr. Dennis made the necessary showing, granted him a certificate of appealability to proceed on appeal, and ordered briefing on his claims. (We review Mr. Dennis' ineffective assistance of counsel claim and other constitutional or underlying claims, applying the following standard of review.

A. Standard of Review

Because Mr. Dennis seeks relief from a state conviction, he must show the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The district court determined Mr. Dennis' petition failed to meet this requirement. We review the legal basis for the district court's dismissal of Mr. Dennis' § 2254 petition de novo. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. ), cert. denied, 525 U.S. 950 (1998). We note the district court's denial of Mr. Dennis' petition stemmed, in part, from his procedural default in failing to raise six of his claims on direct appeal. Oklahoma law denying post-conviction relief on defaulted claims that could have been raised on direct appeal provides an independent and adequate state ground permitting us to refuse to review such claims. See Odum v. Boone, 62 F.3d 327, 331 (10th Cir. 1995). This court will not perform a habeas review on issues defaulted in state court on independent and adequate state procedural grounds, unless Mr. Dennis can demonstrate "cause and prejudice or a fundamental miscarriage of justice." Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (relying on Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)). As the magistrate judge in this case ascertained, an ineffective assistance of counsel claim can serve as "cause" to excuse Mr. Dennis' procedural default on his other underlying or constitutional claims. See Coleman, 501 U.S. at 753-54.

We determine whether Mr. Dennis has shown "cause" for his state procedural default on his other claims by assessing his ineffective assistance of counsel claim. Hickman, 160 F.3d at 1273. Mr. Dennis' ineffective assistance of counsel claim "presents a mixed question of law and fact which we review de novo." Id. at 1273 (quotation marks omitted). To prevail on this claim, Mr. Dennis must show: "(1) that his counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense." Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). Under Strickland, we need not separately determine the effectiveness of Mr. Dennis' counsel if we find the alleged deficiency did not prejudice Mr. Dennis. See Brewer v. Reynolds, 51 F.3d 1519, 1523 & n.7 (10th Cir. 1995), cert. denied, 516 U.S. 1123 (1996). In order to determine if prejudice occurred, we review the merits of Mr. Dennis' underlying or constitutional claims. See Banks v. Reynolds, 54 F.3d 1508, 1514, 1516 (10th Cir. 1995). If those claims lack merit, Mr. Dennis cannot claim prejudice from his attorney's failure to raise them at trial or on direct state appeal. Id. With these standards in mind, we proceed to examine the merits of each of Mr. Dennis' grounds for appeal.

B. Double Jeopardy and Related Claims

The crux of Mr. Dennis' double jeopardy and related claims rests on the fact Mr. Dennis received four convictions for what he describes as a single act or transaction, occurring at the same time and place, and involving the same rock of cocaine, which he scored, broke apart and delivered a part of to Mr. Shaw. Mr. Dennis suggests he should be convicted of only one offense and not receive four convictions in violation of the Double Jeopardy Clause...

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