Robert Rome Schiebert, Petitioner-appellant, v. Jack Cowley, Warden; and Attorney General, State Ofoklahoma, Respondents-appellees, 951 F.2d 1260 (10th Cir. 1991)

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir.R. 34.1.2. The case is therefore ordered submitted without oral argument.

This matter is before the court on Petitioner's motion for certificate of probable cause. We grant Petitioner's motion and proceed to the merits of the case.

The sole issue raised by Petitioner in this habeas corpus petition is ineffective assistance of counsel. Petitioner claims both his trial and his appellate representation were constitutionally deficient under the test set out in Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner claims his trial counsel was deficient in failing to request recordation of the prosecutor's closing argument. Petitioner claims his appellate counsel was deficient in failing to raise the issue of his trial counsel's failure to request the recordation. Petitioner also contends his appellate counsel erred by failing to challenge on appeal the trial court's admittance of incriminating hearsay testimony.

The Strickland test is two-prong. First, Petitioner must show that his counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed Petitioner by the Sixth Amendment. Id. at 687. Second, Petitioner must show that the deficient performance prejudiced his defense. Id. Even assuming the omissions Petitioner complains of were errors, we agree with the district court that there was no prejudice.

We AFFIRM. The mandate shall issue forthwith.