* This order and judgment is not binding precedent, e xcept under the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

### OCT 30 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GARRY MICHAEL CHENEY,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 01-5004 (D.C. No. 97-CV-300-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.

After examining the appellant’s brief and the appel late record, this panel has determined unanimously that oral argument wouldnot materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Petitioner Garry Michael Cheney seeks a certificate of appealability (COA) to pursue his appeal of the district court’s denial of his petition for a writ of-2-

habeas corpus filed pursuant to 28 U.S.C. § 2254. Determining that Mr. Cheney has not met the statutory requirements, we deny hi s application and dismiss the appeal. To be entitled to a COA, Mr. Cheney must make a “su bstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this showing by establishing that “reasonable jurists co uld debate whether (or, for that matter, agree that) the petition should have been r esolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted). We will grant relief if the state court entered a judg ment that (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). In 1993, Mr. Cheney was found guilty of first degre e murder and was sentenced to death. On appeal, the Oklahoma Court of Criminal Appeals determined that “there [wa]s no evidence of physica l or mental torture prior to death, and the especially heinous, atrocious or cru el aggravating circumstance should not have been applied in this case.” Cheney v. State , 909 P.2d 74, 83-3-

(Okla. Crim. App. 1995). The court affirmed the fi rst degree murder conviction, but modified petitioner’s sentence to life imprison ment without the possibility of parole. In his federal habeas petition, Mr. Cheney raised n ine issues. The district court denied relief and Mr. Cheney appeals. On app eal, he argues that the state failed to prove his sanity beyond a reasonable doub t and that the insanity instruction was fundamentally defective as it requi red the jury to find him insane under both prongs of the McNaghten test. He contends the evidence was insufficient to prove first degree murder and that the state court erred in failing to instruct the jury on second degree murder as it was constitutionally required to do because his was a capital case. Mr. Cheney asserts cumulative error as to (1) the heat of passion manslaughter instruction sets forthan erroneous standard of proof; (2) prosecutorial misconduct, (3) improper a dmission of the irrelevant opinion of a jailhouse informant. Finally, Mr. Che ney contends he received ineffective assistance of counsel. Upon review of the record, the brief submitted to this court, and the applicable law, we conclude that Mr. Cheney has fai led to meet the standards established in § 2254(d). Reasonable jurists couldnot debate whether his “petition should have been resolved in a different manner” or whether “the issues-4-

presented were adequate to deserve encouragement to proceed further.” Slack , 529 U.S. at 484 (quotation omitted). We DENY Mr. Cheney’s application for a COA and DISM ISS this appeal.

Entered for the Court

Mary Beck Briscoe Circuit Judge