UNITED STATES COURT OF APPEALS TENTH CIRCUIT Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80257 (303) 844-3157 Patrick J. Fisher, Jr. Jane B. Howell Clerk Chief Deputy Clerk November 19, 2001

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT RE: 01-5107, Payne v. Ward Filed on October 30, 2001
Due to a clerical error, the order and judgment fil ed in the captioned case refers to Terry Lynn Payne as “Terry Lynn Ward,” an d “Mr. Ward.” A copy of the corrected order and judgment is attac hed for your convenience.
Sincerely, Patrick Fisher, Clerk of Court
By: Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of res judicata, collateral estoppel, and law of the case. 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 

### OCT 30 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY LYNN PAYNE,

Petitioner-Appellant, No. 01-5107

v. (N.D. Oklahoma) RONALD WARD,

Respondent-Appellee. (D.C. No. 98-CV-159-H)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , 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). The case is, therefore, ordered submitted without oral argument. Terry Lynn Payne, a state prisoner proceeding pro se , requests a certificate of appealability (“COA”) to appeal the denial of hi s 28 U.S.C. § 2254 habeas2

petition. For the reasons stated below, we deny a COA and dismiss the appeal. An Oklahoma jury convicted Mr. Payne of twelve counts of ‘first-degree rape’ and eleven counts of ‘rape by instrumentation .’ The charges arose from Mr. Payne’s interactions, on at least twelve different occasions, with a single victim. The Oklahoma trial court sentenced Mr. Payne to twe nty-five, thirty, thirty-five, or forty years’ imprisonment for each of the twelve first-degree rape convictions and eight or ten years’ imprisonment for each of th e eleven rape by instrumentation convictions. The trial court order ed the sentences served consecutively, thereby producing a sentence totalin g 502 years. The trial court also fined Mr. Payne $120,000. Mr. Payne unsuccess fully sought relief on direct appeal to the Oklahoma Court of Criminal Appeals. Mr. Payne next petitioned the United States Distric t Court for the Northern District of Oklahoma for habeas relief. Mr. Payne contended, as he had on direct appeal to the Oklahoma Court of Criminal Appeals, t hat: 1) the Double Jeopardy Clause bars Oklahoma from punishing Mr. Payne for b oth first-degree rape and rape by instrumentation, see U.S. C ONST . amend. V; 2) Oklahoma produced insufficient evidence for a jury to properly convic t Mr. Payne of first-degree rape, thereby violating the Due Process Clause, see U.S. C ONST . amend XIV; and 3) the Eighth Amendment’s prohibition on “cruel and unusua l punishment[]” bars Oklahoma from imposing a 502 year sentence for the conduct of which the jury3

convicted Mr. Payne, see U.S. C ONST
. amend. VIII. Noting AEDPA’s “contrary to, or . . . unreasonable application of” and “based on an unreasonable determination of the fact s” standards of review, the district court denied relief. 28 U.S.C. § 2254(d)( 1) and (2). The district court first noted that Blockburger v. United States , 284 U.S. 299 (1932), governs application of the Double Jeopardy Clause. See United States v. Dixon , 509 U.S. 688, 696 (1993) (“In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘ same-elements’ test, the double jeopardy bar applies.”). Blockburger bars punishment, imposed for a single course of conduct, for two offenses unless each off ense contains an element not contained by the other offense. See Blockburger , 284 U.S. at 304. Here, the jury convicted Mr. Payne of first-degree rape and of rap e by instrumentation. Firstdegree rape, as charged against Mr. Payne, requires “sexual intercourse,” where “sexual intercourse” is defined as “the actual cont act of the sexual organs of a man and a woman, and an actual penetration into the body of the latter.” Okla. Stat. tit. 21, § 1111(A)(1); Oklahoma Uniform Jury Instruction – Criminal 480 (1981). Thus, first-degree rape requires proof of penetration by the penis. Rape by instrumentation, on the other hand, occurs when “any inanimate object or any part of the body, not amounting to sexual intercour se[,] is used in the carnal4

knowledge of another person without his or her cons ent[,] and penetration of the anus or vagina occurs to that person.” Okla. Stat. tit. 21, § 1111.1. Thus, rape by instrumentation requires proof of penetration by so mething other than a male sexual organ. Since first-degree rape and rape by instrumentation each include an element not included in the other (penetration by apenis and penetration by something other than a penis), the Oklahoma Court o f Criminal Appeals reasonably rejected Mr. Payne’s argument that convi ction and sentence for both offenses violates the Double Jeopardy Clause. Cf. Rhoden v. Rowland , 10 F.3d 1457, 1461-62 (9th Cir. 1993) (“[I]t is well settle d that a single transaction can give rise to distinctive offenses under separate st atutes without violating the Double Jeopardy Clause.”) (internal quotation marks omitted). The district court next observed that Mr. Payne’s i nsufficiency of the evidence claim required demonstration that the pros ecution offered no evidence from which the jury could have properly concluded that Mr. Payne committed first-degree rape. As noted above, in Oklahoma, fi rst-degree rape requires, among other elements, “the actual contact of the se xual organs of a man and a woman, and an actual penetration into the body of the latter.” Oklahoma Uniform Jury Instruction – Criminal 480 (1981) (defining “s exual intercourse,” as required by Okla. Stat. tit. 21, § 1111(A)(1)). Here, Mr. P ayne contested proof of penetration. The district court noted, however, th at the prosecution introduced5

the victim’s testimony; the victim, a child, testif ied that Mr. Payne would “stick his private in mine.” Rec. vol. II, at 336 (testim ony of the victim, K.N.H.). Thus the Oklahoma Court of Criminal Appeals reasonably r ejected Mr. Payne’s argument that the prosecution introduced insufficie nt evidence to sustain Mr. Payne’s conviction for first-degree rape. Finally, the district court recognized that Eighth Amendment analysis “focuses on the sentence imposed for each specific crime, not the cumulative sentence for multiple crimes.” Hawkins v. Hargett , 200 F.3d 1279, 1284-85 & n.5 (10th Cir. 1999); see also United States v. Schell , 692 F.2d 672, 675 (10th Cir. 1982). Since Mr. Payne admitted that none of his i ndividual sentences exceeded the statutory maximum, the Oklahoma Court of Crimin al Appeals reasonably rejected Mr. Payne’s argument that the 502 year sentence violates the Eighth Amendment prohibition upon “cruel and unusual punis hment[].” Mr. Payne now seeks a COA only in regard to his fir st and second claims; Mr. Payne no longer presses the Eighth Amendment claim. Pursuant to Haines v.
Kerner , 404 U.S. 519, 520-21 (1972) ( per curiam ), we liberally construe Mr. Payne’s remaining allegations. To be entitled to aCOA, Mr. Payne must make a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2). Mr. Payne may make this showing by dem onstrating that the issues he raises are debatable among jurists, that a courtcould resolve the issues6

differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Having reviewed Mr. Payne’s request for a COA, his appellate brief, the district court’s order, and the appellate record, w e conclude that Mr. Payne has failed to make the required showing for a COA. Acc ordingly, and for substantially the same reasons set forth in the dis trict court’s June 12, 2001 order, we DENY Mr. Payne’s motion for a COA and DISMISS hi s appeal.

Entered for the Court,

Robert H. Henry Circuit Judge