                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                        PUBLISH
                                                                           JUL 13 1999
                     UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                                                                Clerk
                                   TENTH CIRCUIT



 MICHAEL RENE SHERRILL,

               Petitioner - Appellant,

        v.                                                No. 99-5042

 STEVE HARGETT,

               Respondent - Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE NORTHERN DISTRICT OF OKLAHOMA
                     (D. Ct. No. 96-CV-954-H)


Michael Rene Sherrill, Pro Se.


Before TACHA , McKAY , and MURPHY , Circuit Judges.


TACHA , Circuit Judge.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

       Petitioner Michael Rene Sherrill, an Oklahoma state prisoner proceeding
pro se, appeals from the district court’s order denying his petition for a writ of

habeas corpus, filed in accordance with 28 U.S.C. § 2254. Mr. Sherrill requests a

certificate of appealability, which we deny.

                                          I.

      On December 18, 1987, a jury in Tulsa County District Court convicted

petitioner of First Degree Burglary, First Degree Rape, Attempted Forcible

Sodomy, and Robbery by Force. The court sentenced petitioner, cumulatively, to

seventy-seven years in prison. The Oklahoma Court of Criminal Appeals

affirmed his convictions on April 12, 1991. In 1995, petitioner sought post-

conviction relief in the state courts, arguing that: (1) the court presented an

improper instruction to the jury; (2) his trial counsel was constitutionally

ineffective by failing to object to that instruction; and (3) his appellate counsel

was ineffective for failing to challenge the instruction’s constitutionality on direct

appeal. The state courts denied petitioner’s application for post-conviction relief,

finding his jury instruction claim procedurally barred because petitioner failed to

raise it on direct appeal. The state courts further found that he was not deprived

of effective assistance of counsel.

      On October 17, 1996, Mr. Sherrill filed a petition for a writ of habeas

corpus in the United States District Court for the Northern District of Oklahoma.

The habeas petition raises the same claims presented to the state courts in


                                         -2-
petitioner’s application for post-conviction relief. The district court denied the §

2254 petition, finding Mr. Sherrill’s jury instruction and ineffective assistance of

trial counsel claims procedurally barred and his ineffective assistance of appellate

counsel claim without merit. On appeal, petitioner argues that the district court

erred in denying his § 2254 petition.   1



                                            II.

       Petitioner first argues that the district court erred in finding that his state

procedural default barred federal habeas review of his jury instruction claim. It is

well established that federal habeas review of claims defaulted in state court

pursuant to an independent and adequate state procedural rule is barred “unless

the prisoner can demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.”     Coleman v.

Thompson , 501 U.S. 722, 750 (1991). “A state procedural ground is independent

if it relies on state law, rather than federal law, as the basis for the decision.”

English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). “For the state ground to

be adequate, it must be strictly or regularly followed and applied evenhandedly to

all similar claims.”   Hickman v. Spears , 160 F.3d 1269, 1271 (10th Cir. 1998)




       Petitioner has abandoned his ineffective assistance of trial counsel claim
       1

on appeal.

                                            -3-
(internal quotation marks and citations omitted). In this case, Oklahoma’s

procedural rule barring post-conviction relief for claims petitioner could have

raised on direct appeal constitutes an independent and adequate ground barring

review of petitioner’s jury instruction claim.     See Odum v. Boone , 62 F.3d 327,

331 (10th Cir. 1995); Steele v. Young , 11 F.3d 1518, 1522 (10th Cir. 1993).

Petitioner therefore is not entitled to habeas review of his jury instruction claim

unless he can show cause and prejudice justifying his state procedural default.   2



       Petitioner claims that his failure to raise the jury instruction issue on direct

appeal was attributable to his appellate counsel’s deficient performance.

“Attorney error amounting to constitutionally ineffective assistance of counsel

constitutes ‘cause’ for a procedural default.”     Hickman , 160 F.3d at 1272.

“Because the same legal standards govern petitioner’s underlying claim of

ineffective assistance of counsel and his closely related burden to show cause for

his state law procedural default, we must determine whether petitioner has shown

cause concurrently with the merits of his ineffective assistance of counsel claim.”

Id. at 1273.

                                            III.


       2
        Mr. Sherrill cannot show that denying review of his claim based on his
state procedural default will result in a fundamental miscarriage of justice
because to meet this standard, “the petitioner must supplement his habeas claim
with a colorable showing of factual innocence.”   Demarest v. Price , 130 F.3d 922,
941 (10th Cir. 1997). Petitioner has not presented evidence of his innocence.

                                            -4-
       “Claims of ineffective assistance of counsel present mixed questions of law

and fact which we review de novo.”       Newsted v. Gibson , 158 F.3d 1085, 1090

(10th Cir. 1998). To prevail on an ineffective assistance of counsel claim,

petitioner 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.”   Hickman , 160 F.3d at 1273 (citing    Strickland v. Washington , 466

U.S. 668, 688, 694 (1984)). To satisfy the first part of the       Strickland test,

“petitioner must overcome the ‘strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’”         Id. (quoting

Strickland , 466 U.S. at 689). “We review petitioner’s ineffective assistance of

counsel claim from the perspective of his counsel at the time he rendered his legal

services, not in hindsight .” Id. (emphasis added). Moreover, in examining

counsel’s performance, we focus on “not what is prudent or appropriate, but only

what is constitutionally compelled.”     United States v. Chronic , 466 U.S. 648, 665

n.38 (1984). To meet the second part of the       Strickland test, petitioner must show

that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”         Strickland , 466

U.S. at 694.

       At petitioner’s trial, the court presented an instruction to the jury that

included a statement that petitioner was “presumed to be not guilty” in lieu of the


                                            -5-
language in the uniform Oklahoma instruction which provides that a criminal

defendant is presumed “innocent.” Petitioner asserts that his Sixth Amendment

right to effective assistance of counsel was violated when his appellate counsel

failed to challenge the constitutionality of the jury instruction. In support of his

argument, petitioner relies on    Flores v. State , 896 P.2d 558, 562 (Okla. Crim.

App. 1995), in which the Oklahoma Court of Criminal Appeals found

unconstitutional the use of an instruction nearly identical to that presented at

petitioner’s trial. However,     Flores was decided over three years after petitioner’s

direct appeal was completed and his conviction became final. Generally, counsel

is not ineffective for failing to anticipate arguments or appellate issues that only

blossomed after defendant’s trial and appeal have concluded.       See Jameson v.

Coughlin , 22 F.3d 427, 429 (2d Cir. 1994) (finding failure to challenge a lower

court’s reasonable interpretation of state law was not constitutionally deficient,

even though that interpretation was later overruled by the New York Court of

Appeals); Lilly v. Gilmore , 988 F.2d 783, 786 (7th Cir. 1993) (“The Sixth

Amendment does not require counsel to forecast changes or advances in the law,

or to press meritless arguments before a court.”).

       Nonetheless, petitioner asserts that the basis of reversal recognized in

Flores was obvious and should have been apparent to his appellate counsel even

before Flores was decided. We disagree. In        Flores , the Oklahoma Court of


                                            -6-
Criminal Appeals noted that it had found only one other case involving an

instruction that the defendant was presumed “not guilty.” In that case, the

instruction was upheld.        See 896 P.2d at 562 n.7 (citing   City of Bucyrus v.

Fawley , 552 N.E.2d 676 (Ohio Ct. App. 1988)). Given the absence of specific

authority to the contrary, it was reasonable for petitioner’s appellate counsel to

rely on the general principle that an instruction using the particular phrase

“presumption of innocence” is not required to preserve a criminal defendant’s

constitutional right “to have his guilt or innocence determined solely on the basis

of the evidence introduced at trial.”      See Taylor v. Kentucky , 436 U.S. 478, 485-

86 (1978). While a presumption of innocence instruction helps guard that right,

see id. at 486, whether the right was violated depends on the totality of the

circumstances of the case,       see Kentucky v. Whorton , 441 U.S. 786, 789 (1979).

Counsel’s failure to forecast an appellate court’s finding of constitutional

violation in the circumstances of this case did not constitute performance falling

“outside the wide range of professionally competent assistance.”          Strickland , 466

U.S. at 690. The alleged constitutional violation was certainly not obvious at

petitioner’s trial.   3
                          Moreover, appellate counsel is not constitutionally required to


       3
        The Kansas Supreme Court’s recent disagreement with the holding of the
Oklahoma Court of Criminal Appeals in      Flores strengthens our conclusion. In
State v. Pierce , 927 P.2d 929, 936 (Kan. 1996), the Kansas Supreme Court held
that a “not guilty” instruction preserved defendant’s presumption of innocence.
This split in authority suggests the issue is hardly as clear as petitioner suggests.

                                               -7-
raise every nonfrivolous or colorable issue on appeal.    See Jones v. Barnes , 463

U.S. 745, 751-54 (1983);    Lafevers v. Gibson ,__F.3d__, No. 98-6302, 1999 WL

394508, at *16-17 (10th Cir. 1999). Petitioner’s ineffective assistance of

appellate counsel claim therefore has no merit and cannot constitute “cause” for

his procedural default in state court.

                                            IV.

       Because petitioner procedurally defaulted his jury instruction claim and his

ineffective assistance claim is without merit, he has failed to make “a substantial

showing of the denial of a constitutional right,”    see 28 U.S.C. § 2253(c)(2).

Accordingly, we DENY Mr. Sherrill’s request for a certificate of appealability.

The appeal is DISMISSED.




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