* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 14 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALFORD M. HALEY, Petitioner-Appellant,

v. GARY E. GIBSON; DREW EDMONDSON; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 00-6105 (W. District of Oklahoma) (D.C. No. 99-CV-748-C)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, 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); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Alford M. Haley, proceeding pro se , is before this court seeking a certificate of appealability (“COA”) which he must obtain before he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not b e taken from the denial of a § 2254 habeas petition unless the petitioner first ob tains a COA). Haley has not made a substantial showing of the denial of a const itutional right; he, therefore, is not entitled to a COA and his appeal is dismissed. See id . § 2253(c)(2). Haley was convicted of first degree murder in Oklah oma state court and was sentenced to life imprisonment without the poss ibility of parole. On direct appeal to the Oklahoma Court of Criminal Appeals (“ OCCA”), Haley raised the following four issues: (1) the prosecution presente d insufficient evidence to support his conviction because the testimony of an accomplice was not corroborated; (2) the state trial court erred when it overruled his objection to a jury instruction on other crimes evidence; (3) the trial court made erroneous evidentiary rulings when it allowed testimony of wi tness intimidation, admitted handwritten notes written by Haley, and allowed a p olice officer to read his notes into the record; and (4) the sentence imposed is ex cessive. The OCCA issued an opinion affirming Haley’s conviction and sentence. After exhausting his state1 The district court liberally construed Haley’s habe as petition as raising

constitutional questions.

2 The district court also denied Haley’s motion to pr oceed in forma pauperis on appeal and Haley renewed that motion before this court. Haley’s renewed motion to proceed in forma pauperis on appeal is denied. -3- remedies, Haley filed the instant § 2254 habeas pet ition reasserting the four claims he raised before the OCCA. 1 The district court assigned Haley’s petition to a U nited States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The ma gistrate judge recommended that the petition be dismissed. After reviewing Ha ley’s objections, the district court adopted the magistrate judge’s Report and Rec ommendation, and dismissed Haley’s petition. 2 The district court also refused to grant Haley a COA. Haley filed his habeas petition after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (“AED PA”). The AEDPA, therefore, governs this court’s review of Haley’s c laims. Because each of Haley’s claims has already been addressed by the OCCA on th e merits, this court cannot grant the writ of habeas corpus unless the state co urt’s decision “was contrary to, or involved an unreasonable application of, clearlyestablished Federal law, as determined by the Supreme Court of the United State s,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented at trial.” Id . § 2254(d)(2); see also Williams v. Taylor , 120 S. Ct. 1495, 1518-23 (2000) (interpreting 28 U.S.C. § 2254(d)(1)).-4-

Haley first claims that the prosecution presented i nsufficient evidence to sustain his conviction. Specifically, Haley assert s that the state failed to prove that he caused the death of the victim because the only evidence linking him to the murder was the testimony of his accomplice. See Okla. Stat. tit. 22, § 742 (providing that a defendant cannot be convicted bas ed upon the uncorroborated testimony of an accomplice). Recognizing that Haley’s claim is not cognizable on habeas review, Johnson v. Turner , 429 F.2d 1152, 1155 (10th Cir. 1970), the district court recharacterized Haley’s claim as a c onstitutionally-based sufficiency of the evidence claim that can be raised in a § 2254 petition. See Jackson v. Virginia , 443 U.S. 307, 321 (1979). On habeas review of su fficiency of the evidence claims, this court must determine “whether , after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id . at 319.

The Report and Recommendation contains a comprehens ive discussion of the evidence presented at Haley’s trial. This evid ence was not limited to the testimony of Haley’s accomplice, but also included the testimony of eyewitnesses to the murder. We agree with the district court th at the evidence presented at Haley’s trial, viewed in the light most favorable t o the prosecution, was sufficient-5-

to support Haley’s conviction. Haley’s sufficiencyof the evidence claim, therefore, lacks merit. Haley next argues that the trial court erred when i t made three separate evidentiary rulings. “State court rulings on the a dmissibility of evidence may not be questioned in federal habeas corpus proceedings unless they render the trial so fundamentally unfair as to constitute a denial of f ederal constitutional rights.” Brinlee v. Crisp , 608 F.2d 839, 850 (10th Cir. 1979). Haley claims the trial court erred when it admitted evidence of witness intimidation; allowed the admission of incriminating, handwritten notes attributed to H aley; and allowed a police officer to read his notes into the record. Each of these claims was thoroughly analyzed by the magistrate judge and discussed at l ength in the Report and Recommendation and, in the interest of judicial eco nomy, we will not repeat the magistrate judge’s analysis on each evidentiary iss ue. We agree with the district court’s conclusion that Haley has failed to demonstrate how any of the trial court’s evidentiary rulings rendered his trial fund amentally unfair. Haley’s evidentiary’s claims, therefore, are also without m erit. Haley next argues that the trial court failed to pr operly instruct the jury on the limited purpose for which the jury could consid er evidence of other crimes committed by Haley. The district court noted that not only did Haley fail to object to the jury instruction at trial, but that the instruction of which Haley3 Haley includes a one-sentence argument in his appel late brief that his trial

counsel was ineffective for failing to object to th e allegedly erroneous jury instruction. This claim was not presented to the district court in Haley’s § 2254 petition and this court will not consider issues ra ised for the first time on appeal. See Rhine v. Boone , 182 F.3d 1153, 1154 (10th Cir. 1999).

4 Haley also argues that the district court’s rechara cterization of his Motion to Deny Response to Petition for Writ of Habeas Corpus as a reply violated his due process rights. Haley also claims that the den ial of a Motion to Order Summary Judgment he filed was fundamentally unfair and violated his due process rights. Haley’s claims are utterly withoutmerit. -6- complains was submitted by Haley himself. A petiti oner who claims the trial court gave an erroneous jury instruction is not ent itled to habeas relief on his claim when the error complained of resulted from th e petitioner’s own conduct in submitting the instruction. See Parker v. Champion , 148 F.3d 1219, 1222 (10th Cir. 1998). Even if the invited error doctrine did not apply, H aley is not entitled to relief on this claim in a § 2254 habeas petition unless the state court’s error “had the effect of rendering the trial so fundament ally unfair as to cause a denial of a fair trial in the constitutional sense.” Brinlee , 608 F.2d at 854. This court agrees with the district court that Haley’s trial w as not rendered fundamentally unfair by the allegedly erroneous instruction. 3 In his final argument, 4 Haley claims the sentence imposed by the trial cou rt was excessive. If we construe Haley’s claim as a d ue process challenge to his sentence, Haley is not entitled to habeas relief on this clai m if the sentence imposed is within the limitations set by statute. See Vasquez v. Cooper , 862 F.2d-7-

250, 255 (10th Cir. 1988). The crime of which Hale y was convicted is punishable by death, life imprisonment without the possibility of parole, or life imprisonment. See Okla Stat. tit. 21, §§ 701.7, 701.9. Haley’s sent ence of life imprisonment without the possibility of parole is, therefore, clearly within the statutory limits and his claim is without merit. I f Haley’s claim is construed as an Eighth Amendment challenge to his sentence, Hale y is likewise not entitled to relief because his sentence is not grossly dispropo rtionate to the crime he committed. See Hawkins v. Hargett , 200 F.3d 1279, 1282 (10th Cir. 1999). Haley must make a “substantial showing of the denia l of a constitutional right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2). Haley may make this showing by demonstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or thatthe questions presented deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000). Upon review of the relevant case law, Haley’s appel late brief and his application for a COA, and the entire record on appeal, we agre e with the district court’s conclusion that all of Haley’s claims lack merit an d that Haley has failed to demonstrate that the OCCA’s adjudication of his cla ims is “contrary to, or involved an unreasonable application of, clearly es tablished Federal law,” or is “based on an unreasonable determination of the fact s in light of the evidence presented at trial.” 28 U.S.C. § 2254(d)(1), (2).-8-

This court concludes the issues raised by Haley are not reasonably debatable, subject to a different resolution on app eal, or deserving of further proceedings. Haley, therefore, has not made a subs tantial showing of the denial of a federal right and he is not entitled to a COA. See 28 U.S.C. § 2253(c)(2).
We deny Haley’s application for a COA and dismiss his appeal for substantially those reasons set out in the magistrate judge’s Rep ort and Recommendation dated February 15, 2000 and the district court’s order dated March 7, 2000.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge