* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 3 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
TROY GENE BARBEE,

Petitioner-Appellant,
v. SAM CALBONE; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 00-7104 (D.C. No. 98-CV-565-S) (E.D. Okla)

ORDER AND JUDGMENT *
Before EBEL , PORFILIO, and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Troy Gene Barbee appeals the district co urt’s order denying relief in this case filed pursuant to 28 U.S.C. § 2254. We granted Petitioner’s motion for a certificate of appealability limited t o the issue of whether the evidence was sufficient to support the jury’s verdi ct. We affirm. In 1996, Petitioner was convicted in state court of armed robbery and shooting with intent to injure after former convict ion of a felony. He was sentenced to fifteen years’ imprisonment on count o ne and ten years on count two to be served consecutively. His convictions and se ntences were affirmed on direct appeal. In his § 2254 petition, Petitioner alleged that insufficient evi dence was adduced to convict him, he received ineffective ass istance of both trial and appellate counsels, and he was convicted in violati on of double jeopardy. He also asserted his trial should have been severed from th at of his co-defendant, perjured testimony was presented, and various state law viol ations occurred. At trial, the state presented evidence supporting t he charge that Petitioner drove the vehicle used in the robbery of a victim w ho was stopped by the side of the road after his car had broken down. The vehicl e pulled up beside the victim’s car at which time Petitioner’s co-defendant reachedthrough the window of the vehicle and took possession of the victim’s wallet. As the vehicle pulled away, the co-defendant fired one shot at the victim. Bec ause it was dark, the victim-3-

could not see Petitioner, the alleged driver of the vehicle. Highway patrol officers stopped the vehicle several hours later onsuspicion of drunken driving. Petitioner was driving the vehicle at the time of t he stop. A gun was found inside the vehicle along with various credit cards belongi ng to the victim. At trial, the victim identified Petitioner’s co-def endant as the person who took his wallet and testified that the shot came fr om the passenger side of the vehicle. Petitioner testified at trial and stated that he had spent the day and evening at his father-in-law’s home, clearing 20-30 trees, digging postholes by hand and setting 16 posts, until leaving several ho urs after the robbery with his co-defendant to get some beer. He denied committin g the crime. After exhausting his state court remedies, Petition er brought this habeas action. The district court denied relief, holding Petitioner presented no issues showing that he had been denied any constitutional rights which would entitle him to habeas relief. On appeal, Petitioner argues the district court erred in this ruling. We granted a certificate of appealability only on the issue of whether sufficient evidence was presented to support his co nviction. As to Petitioner’s remaining contentions, we have reviewed the distric t court’s judgment in light of his submissions to this court and the record on app eal. Petitioner has failed to meet the parameters established in 28 U.S.C. § 2254 (d)(1)(2) for issuance of a certificate of appealability on these remaining iss ues.-4-

Petitioner argues the evidence presented at trial w as insufficient to convict him because the victim could not identify him or say that he had any of the characteristics of the driver of the getaway car. He contends the evidence presented was admissible only against his co-defend ant, not against him. Petitioner notes the evidence only showed he was inthe car with his co-defendant three hours after the robbery, but not at the time of the robbery. He further asserts he did not own the car or the gun nor was h e aware the gun was in the car. He contends there was no evidence that the car he w as later driving was actually used in the robbery. Finally, he notes he had an a libi for the time of the robbery. Under 28 U.S.C. § 2254(d), as amended by AEDPA, whe n a state court has decided issues on the merits, we may grant habeas r elief only if a petitioner can show that the state court decision “was contrary to , or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Under federal law, we review a suff iciency of the evidence challenge to determine “whether, after vie wing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). The determination of the witnesses’ credibility lies-5-

within the province of the jury. A reviewing court“may not weigh conflicting evidence nor consider the credibility of witnesses. Rather, the Court must accept the jury’s resolution of the evidence as long as itis within the bounds of reason.” Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996) (quotation omitted ). Petitioner testified he did not commit the crimes. However, Petitioner’s codefendant admitted on cross-examination that on the date in question Petitioner was with him from before dark on. II Tr. 358-59. Likewise, Petitioner admitted that he was with his co-defendant from dusk to 10:0 0 p.m. II Tr. 380. As noted, the victim identified the co-defendant as the man t hat pointed the gun at his head and took his wallet. I Tr. 156. Petitioner presented an alibi witness who testifiedas to the details of Petitioner’s visit to her home on the night of the robbery in December. On cross-examination, however, she admitted she had pr eviously told the district attorney the visit had been in January. She also t estified she could remember the meal she had cooked that night, but not any other n ight that week. Further, that day was not any special day which would have causedher to remember it.-6-

The evidence was sufficient for a rational juror to find Petitioner guilty of the crimes beyond a reasonable doubt. Accordingly, the judgment of the United States District Court for the Eastern District of O klahoma is AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge