* This order and judgment is not binding precedent, except under the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

### MAY 22 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
CECIL WAYNE HALLMARK,

Petitioner - Appellant, No. 01-5118
v. (N.D. Oklahoma) TOM MARTIN, Warden, Great Plains Correctional Facility, Respondent - Appellee, (D.C. No. 97-CV-567-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 s ubmitted without oral argument.-2-

Petitioner Cecil W. Hallmark was convicted of the f ollowing offenses in an Oklahoma state court: (1) first degree rape; (2) fi rst degree burglary; (3) attempted rape in the first degree; and (4) sexual battery. On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) issued an opinion concluding that Mr. Hallmark’s convictions for attempted rape and for sexual battery violated the constitutional prohibition against double jeopardy. Accordingly, the OCCA remanded the case to the trial court with instructi ons to dismiss those convictions. The OCCA further concluded that the trial court had erred in failing to order a presentence investigation. The OCCA thus d irected the trial court to resentence Mr. Hallmark on the rape and burglary co nvictions after the completion of the presentence investigation. On re mand, the trial court conducted the investigation and then imposed consecutive sent ences of seventy-five years and twelve years on Mr. Hallmark’s two remaining co nvictions. After exhausting his state court post-conviction re medies, Mr. Hallmark filed the instant habeas corpus petition in federal district court on June 13, 1997. He asserted the following claims: (1) that he recei ved ineffective assistance of counsel at trial; (2) that the state trial judge in correctly answered a question raised by the jury during deliberation; (3) that th ere was insufficient evidence to support his convictions; (4) that he received ineff ective assistance of counsel on direct appeal; (5) that the trial court failed to p roperly instruct the jury on the-3-

elements of first degree burglary; (6) that the tri al court erred in refusing to suppress testimony regarding the victim’s identific ation of Mr. Hallmark on the night of the crime; and (7) that the prosecutor eng aged in misconduct. The district court rejected all of Mr. Hallmark’s claim s, and he then sought to appeal that decision to this court. In a prior order we granted Mr. Hallmark’s applicat ion for a certificate of appealability as to certain issues arising out of M r. Hallmark’s claim that he received ineffective assistance of counsel in his d irect appeal. We denied Mr. Hallmark’s application for a certificate of appeala bility on his other claims. We also directed the parties to supplement the record with the jury instructions from Mr. Hallmark’s trial. Our grant of a certificate of appealability was bas ed on Mr. Hallmark’s allegation that his appellate counsel failed to cha llenge the jury instructions pursuant to Flores v. State , 896 P.2d 558, 562 (Okla. Crim. App. 1995). See Aplt’s Br. at 7. In Flores , the OCCA considered a jury instruction that state d that the defendant was “presumed to be not guilty” rathe r than “presumed innocent.” 896 P.2d at 562. The OCCA concluded that the instruction did not properly explain the presumption of innocence, and it there fore reversed the conviction. Id. Mr. Hallmark maintains that the trial court gave a similar instruction in his-4-

case and that appellate counsel was ineffective forfailing to challenge the instruction pursuant to Flores
. Our review of the jury instructions (contained in the supplemental record filed with this court on March 11, 2002) reveals th at the trial court here did not instruct the jury that Mr. Hallmark was “presumed t o be not guilty,” as did the trial court in Flores . In particular, instruction number four states th at “[t]he defendant is presumed innocent of the crime , and the presumption continues unless after consideration of all the evidence you are convinced of his guilt beyond a reasonable doubt.” Supp. Rec., Instr. no. 4 (emphasis added). Accordingly, Flores does not provide a basis for challenging the jury instructions, and Mr. Hallmark’s appellate counsel was not ineffe ctive for failing to raise that issue. Accordingly, we AFFIRM the district court’s denial of Mr. Hallmark’s claim for ineffective assistance of appellate couns el.
Entered for the Court,
Robert H. Henry Circuit Judge