* This order and judgment is not binding precedent, except under the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

### JUL 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONNIE J. DUNFORD, Petitioner-Appellant,

v. STEVE HARGETT, Respondent-Appellee. No. 97-6365 (D.C. No. 97-CV-455) (W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, C ircuit 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); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Ronnie Dunford, a state inmate appearing pro se, se eks a certificate of appealability to appeal the district court’s dismis sal of his motion to vacate, set-2-

aside, or correct an illegal sentence pursuant to 2 8 U.S.C. § 2254. Because Dunford has failed to make “a substantial showing o f the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we d eny his request for a certificate of appealability and dismiss the appeal. Dunford’s conviction of first degree murder and his sentence of life imprisonment were affirmed on appeal. Dunford v. State , 702 P.2d 1051 (Okl. Crim. App. 1985). In his § 2254 petition, he alleg ed the trial court erred by failing to submit a self-defense instruction to the jury and he received ineffective assistance of trial counsel. The district court ad opted the magistrate’s recommendation that the petition be denied.
Self-defense instruction As a general rule, errors in jury instructions in astate criminal trial are not reviewable in a federal habeas proceeding, unless t hey are so fundamentally unfair as to deprive the petitioner of a fair trial and due process of law. Nguyen v. Reynolds , 131 F.3d 1340, 1357 (10th Cir. 1997). The burden of demonstrating the failure to give a self-defense instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. See id. The question is whether the failure to give such in struction so infected the trial that the resulting conviction violates due process. See id.1 The magistrate held the defense of self defense “is not available to one

who was at fault in provoking an affray or to one w ho voluntarily enters into one. This is true even if during the course of the affray, the initial aggressor finds himself or herself in imminent danger.” Ruth v. State , 581 P.2d 919, 922 (Okla. Crim. App. 1978). Record I, Doc. 279 at 3. -3- The magistrate addressed the merits of Dunford’s cl aim and concluded he had failed to present sufficient evidence of self-d efense and that he was not entitled to such an instruction under Oklahoma law. 1 We have reviewed the entire record on appeal and agree with the magistrate’s co nclusion. Accordingly, Dunford has not met his high burden of establishing the court’s failure to give a self-defense instruction “so infected the trial that the resulting conviction violates due process.” Dunford is not entitled to habeas re lief on this claim.

Ineffective assistance of trial counsel Dunford contends his trial counsel (1) failed to in vestigate the law and facts that would have supported self defense; (2) p resented testimony that supported an alibi defense after initially arguing self defense; and (3) failed to request or offer a self-defense instruction. To obtain post-conviction relief for ineffective as sistance of counsel, a petitioner must demonstrate counsel’s performance w as constitutionally deficient, i.e., it fell below an objective standard of reasonableness, Strickland v. Washington , 466 U.S. 668, 688 (1984), and there is a reasonab le probability that, but for counsel’s errors, the outcome of the procee dings would have been-4-

different, Kimmelman v. Morrison , 477 U.S. 365, 375 (1986); Williamson v. Ward , 110 F.3d 1508, 1514 (10th Cir. 1997). In determi ning whether a petitioner received effective assistance of counsel, we “indul ge a strong presumption that counsel’s conduct falls within the wide range of re asonable professional assistance.” Strickland , 466 U.S. at 689. It is clear from testimony presented during Dunford ’s case that his counsel investigated self defense. Counsel elicited testim ony that the victim had instigated a confrontation with Dunford on the night prior to the incident and that the victim was armed at the time he was shot. Unfo rtunately for Dunford, this testimony did not establish Dunford acted in self d efense under Oklahoma law. Dunford’s claim that trial counsel erroneously elic ited alibi testimony was also addressed by the magistrate: The record shows that counsel for the Petitioner ca lled Mrs. Butler, the Petitioner’s mother-in-law, as his final witness. Each of the prior witnesses, both for the prosecution and the defense , had placed the Petitioner at the scene of the crime. Mrs. Butler, however, stated that the Petitioner was at home with her at the time of the crime. During closing argument, the prosecution made a concerted effort t o establish that her testimony in this respect was unbelievable. In res ponding to this argument, counsel for the Petitioner admitted that he too fou nd Mrs. Butler’s testimony unbelievable. He went on to state that h e had not intended to elicit alibi testimony from her, but had sought oth er information. It thus appears that Mrs. Butler’s response to counsel’s qu estioning was not intended. However, even assuming this constituted error on the part of counsel, the undersigned finds that the Petitioner was not prejudiced by the error, in light of the overwhelming weight of the e vidence against him.-5-

Record I, Doc. 279 at 9. After reviewing the recor d, we agree with the magistrate’s conclusion that, in light of the overw helming weight of evidence, Dunford was not prejudiced by his counsel’s apparently unintended presentation of an alibi witness. Dunford also argues his counsel was ineffective forfailing to request a self-defense instruction. The record does not refl ect whether Dunford’s counsel requested or offered a self-defense instruction but , as noted above, counsel did attempt to present a theory of self defense. Howev er, as we have stated, Dunford was not entitled to a self-defense instruction unde r Oklahoma law. Therefore, counsel did not err in failing to request such an i nstruction. The request for a certificate of appealability is D ENIED and this appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge