UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

JACKIE PETTY, Petitioner – Appellant,

v. JAMES RUDEK, WARDEN, Respondent - Appellee. No. 11-6140 (D.C. No. 5:10- CV-01009-W) (W.D. Okla.)

ORDER DENYING CERTIFICA TE OF APPEALABILITY, AND DISMISSING APPEAL

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.
Jackie Petty, an Oklahoma state prisoner, wants to appeal from the denial of his 28 U.S.C.§ 2254 habeas petition. He challenges th e effectiveness of trial counsel, claims the trial court erred when it denied his request fo r a mistrial, and contends the evidence was insufficient to support his conviction. The district c ourt concluded he did not make “a substantial showing of the denial of a c onstitutional right,” 28 U.S.C. § 2253(c)(2). Because that decision is not even debatably in correct we deny his request for a Certificate of Appealability (COA).
I. BACKGROUND A jury rejected Petty’s claim of self-def ense and determined he was guilty of the FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - first-degree murder of his brother. On Sept ember 18, 2007, Petty was sentenced to life imprisonment with the possibility of parole. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction. Petty v. State , No. F-2007-961 (Okla. Crim. App. Feb. 26, 2009). Petty unsuc cessfully applied for post-conviction relief in the state district court and on appeal. Petty v. State , No. CF-2005-6689 (Okla. Dist. Ct. June 16, 2010); Petty v. State , No. PC-2010-681 (Okla. Crim. App. Sept.15, 2010). He then filed his federal habeas petition which a lleged his trial counsel was ineffective; (1) counsel’s efforts were focused on defending himself fr om criminal and disciplinary charges rather than Petty’s defense, and (2) counsel unreas onably pursued an “all or nothing” defense by rejecting a manslaughter instruction. He al so claimed his trial wa s fundamentally unfair because jurors were intimidated by the court’s investigation of a reported attempt to bribe a juror. Finally, he contended the evidence wa s insufficient to sustai n the charge of first degree murder. The magistrate judge recomm ended Petty’s habeas petition be denied. Over Petty’s objections and after a de novo review, the district court adopted the magistrate’s reasoning a nd denied Petty’s petition. The district court determined the OCCA was not unreasonable in concluding trial counsel’s strategy to limit the jury’s options to acquittal or first-degree murder was not ineffective under the deferential Strickland v. Washington 1 standard. The court also found Petty’s remaining theories based on his counsel’s personal issues were grounded in speculation connected onl y by temporal proximity, and Petty had failed to present legal

1 Strickland v. Washington , 466 U.S. 668 (1964).- 3 - or factual support for this claim. The OCCA rejected Petty’s second claim, based on the trial judge’s investigation into the attempted bribery of a juror and his subsequent denial of a mistrial because the record did not support an inference that the juror in question, who was excused, related the incident to any other juro r. It also found the record contained no suggestion the jury was tainted in any way -- a finding which is en titled to deference. The district court held the OCCA’s denial of Petty’s claim was not c ontrary to or an unreasonable application of clearly established Supreme Court precedent. Finally, the OCCA rejected Petty’s sufficiency-of-the-evidence claim by reasoning: The victim was shot thr ee times; two of the inju ries were independently fatal; one of the shots was fired downwar d into the top of the victim’s skull at very close range. There was eviden ce that the shots were not fired in rapid succession. Given the number, location, and timing of the gunshot wounds, a rational trier of fact could find, beyond a reasonable doubt, that [Petty] . . . acted with malice aforethought. (Summary Opinion at 2.) The district court held th e OCCA’s determination was reasonable. It denied Petty’s request fo r an evidentiary hearing because Petty’s “conclusory requests fall short of the standa rds that would entitle hi m to an evidentiary hearing and because [his] claims can be resolved on the record .” (App. at 49.) Following Petty’s notice of appeal, the cour t denied a COA. Petty now renews his request for a COA with this Court.
II. II. DISCUSSION A COA is a jurisdictional prerequisite to our review of a petition for a writ of- 4 - habeas corpus. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been reso lved in a different manner or th at the issues presented were adequate to deserve encourag ement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). We have thoroughly reviewed the entire re cord as well as Petty ’s combined brief and request for a COA. We conclude the OCCA’s decision was not “contrary to, or involved an unreasonable application of, clearly establis hed Federal law, as determined by the Supreme Court of the United States” nor did it “result[ ] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We agree with the district court’s adjudication of the remaining claims; they are either procedurally barred or Petty failed to show they satisfied the “highly deferential” standard app lied to the ineffective assistance of counsel claims. See Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (quotation marks omitted).
We DENY a COA and DISMISS this matter. Entered by the Court: Terrence L. O’Brien United States Circuit Judge