Bobby Lee Boyd, Petitioner, v. Michael Cody, Warden, Respondent, 13 F.3d 404 (10th Cir. 1993)

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U.S. Court of Appeals for the Tenth Circuit - 13 F.3d 404 (10th Cir. 1993)

Nov. 30, 1993


Before SEYMOUR, ANDERSON and EBEL, Circuit Judges.


ORDER AND JUDGMENT1 

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); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.2 

Petitioner, Bobby Lee Boyd, is a state prisoner serving a sentence arising from a drug conviction in the State of Oklahoma. He appeals the district court's denial of his 28 U.S.C. 2254 petition for habeas corpus. Boyd's 2254 motion alleged that he was entitled to relief on the following grounds: 1) that admission of prior acts evidence at trial was unconstitutional; 2) that there was ineffective assistance of counsel because the trial counsel did not object to the prior acts evidence at trial and the appellate counsel failed to raise the prior acts issue on direct appeal; 3) that an evidentiary hearing is needed to determine whether Boyd was denied ineffective assistance of counsel on his direct appeal; 4) that the charging information was defective because it failed to list "cocaine in any amount" as an essential element of the offense of possession of a dangerous controlled substance; and 5) that there was insufficient evidence to convict him of possession when only a trace or residue of the controlled dangerous substance was found.

After a report by the magistrate, the district court dismissed Boyd's petition on the issues of evidence of prior acts, ineffective assistance of trial counsel, and sufficiency of the evidence on procedural grounds. The court found that Boyd did not show "cause and prejudice" for why he could not have brought these issues in his direct appeal. The district court dismissed the rest of the issues raised by Boyd on the merits. The court found that the failure of the appellate counsel to raise the prior acts issue on direct appeal did not constitute ineffective assistance of counsel since the decision fell within the range of reasonable legal assistance. The district court determined that a hearing on the ineffective assistance claim is unnecessary since there are no longer any factual or legal issues that require consideration. Finally, in regard to the fourth and fifth grounds, the district court held that there was no constitutional violation, because the substantive offense of possession in Oklahoma requires only a trace of controlled substance to support a conviction.

Upon a review of the record, we AFFIRM the order of the district court for the reasons stated therein.

 1

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3

 2

We grant Petitioner Boyd a certificate of probable cause