## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 30 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HENRY G. WEST, Petitioner-Appellant,

v. MIKE ADDISON, Warden, Respondent-Appellee. No. 04-6305 (W.D. Okla.) (D.Ct. No. 04-CV-154-F)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before TACHA , Chief Circuit Judge, andPORFILIO and BRORBY , Senior Circuit Judges.

Appellant Henry Glen West, an Oklahoma state inmate appearing pro se , appeals the district court’s decision denying him acertificate of appealability and dismissing his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. In his petition, Mr. West challenges his numerous convicti ons, but not his sentences. We deny Mr. West’s request for a certificate of app ealability and dismiss his appeal.1 While Mr. West did not file for post-conviction relief, the government, in

response to his habeas petition, acknowledged he exhausted his state court remedies with respect to the three issues raised in his habeas petition. This is because the three issues Mr. West raised in his federal habeas petition are identical to the three issues raised and addressed in his direct appeal to the Oklahoma Court of Criminal Appeals. See Bear v. Boone , 173 F.3d 782, 784 (10th Cir. 1999) (holding “the exhaustion requirement is satisfied if the federal issue has once been properly presented to the highest court of the state”) (quotation marks and citation omitted); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534-35 (10th Cir. 1994) (explaining “[t]he exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack”). -2- The procedural history surrounding Mr. West’s state convictions, sentences, and direct appeal are more fully outlined in the fe deral magistrate judge’s Report and Recommendation (Recommendation). 1 In short, the State of Oklahoma charged Mr. West with two counts of assault and battery with intent to kill; forcible oral sodomy; first degree rape; second deg ree burglary; robbery with firearms; attempting to kill another; assault with a dangerous weapon; and two counts of shooting with intent to kill. A jury con victed him on all counts.

Following the trial, Mr. West raised three issues t o the Oklahoma Court of Criminal Appeals, namely: 1) The trial court’s fai lure to instruct the jury on the defense of automatism denied Mr. West the benefit o f this statutory defense supported by the evidence; 2) The trial court erron eously instructed the jury to consider Mr. West’s flight as substantive evidence of guilt; and 3) The State failed to prove beyond a reasonable doubt the state -of-mind elements of the2Mr. West also unsuccessfully filed a petition for rehearing to the Oklahoma

Court of Criminal Appeals on the issue of his concurrent sentences, which is not before this court on appeal of his habeas petition. -3- charged offenses. Unsuccessful on direct appeal in the state court, 2 Mr. West filed his federal habeas petition, pursuant to 28 U .S.C. § 2254, challenging his convictions on the same three grounds.

The federal district court assigned the matter to amagistrate judge, who issued a thorough and comprehensive report recommen ding denial of Mr. West’s petition on all issues presented. While we decline to reiterate the magistrate judge’s analysis throughout her fifteen-page Recomm endation, we note she carefully considered each of Mr. West’s arguments, the standard of review, and the state court’s resolution of those same argument s, as summarized hereinafter.

In addressing Mr. West’s arguments, the magistrate judge recounted Mr. West’s own summary of his “morning long crime spree ,” and also considered some of Mr. West’s admissions with respect to his c rime spree. It began with Mr. West launching an unprovoked attack on his brother while he slept, hitting him with a hammer and rendering him unconscious. He th en pulled his brother’s girlfriend from the bed into their father’s bedroom where he sodomized, raped3 The evidence shows Mr. West was sufficiently coherent to tie the woman up

with a rope and black electrical tape. -4- and choked her into unconsciousness. 3 Before leaving the apartment, Mr. West searched for a knife because he thought his father had returned to the apartment and he might have to kill him on the way out. He t hen left the apartment in a van, drove around, and pried open the door of a house, f rom which he took a .22 revolver, a .45 semiautomatic handgun, clips and am munition.

After driving around again, Mr. West stopped at a c onvenience store where he used one of the guns to rob the clerk, attempted to fire the gun (which did not discharge) and, after leaving the store, attempted to back the van over the clerk, who followed him out to get his license number. Th e same clerk notified the police.

Meanwhile, after driving away and “because he belie ved he had failed God’s will in not killing the clerk,” Mr. West drov e to another convenience store, went inside and asked for a drink. When the clerks told him he needed money for a beer, Mr. West went back to the van, retrieved a gun and returned to the store. “Without a word,” he shot the man once and the woma n twice as they tried to retreat. Mr. West then drove away.4On direct appeal, Mr. West admitted he was “under the influence of

methamphetamine” at the time of his “morning-long crime spree,” and on appeal to thiscourt he states he was operating under the influence of methamphetamine and a druginduced “hallucination.”

5In Oklahoma, the defense of automatism or unconsciousness, under Okla. Stat. Ann. tit. 21 § 152(6) (1998), involves criminal conduct resulting from an involuntary act completely beyond the individual’s knowledge and control, and cannot be used where the defendant’s unconsciousness results from the voluntary consumption of alcohol or drugs. See Sellers v. State , 809 P.2d 676, 686 (Okla. Crim. App. 1991); Jones v. State , 648 P.2d 1251, 1257-58 (Okla. Crim. App. 1982). It “is a defense distinct from that of insanity,” State v. Krug, 92 P.3d 67, 79 (Okla. 2004), and “‘[e]xamples of automatic conduct are blackouts and epileptic seizures.’” Id. at 79, n.13 (quotingSellers , 809 P.2d at 687). -5- Based on a description of the van from the first co nvenience store clerk, a police officer pursued Mr. West, who drove the van into a ditch, after which he fled on foot and was arrested. At trial, Mr. West admitted he used methamphetamine daily and he used an illegal drug o n the day he committed the crimes. 4 After his arrest, and again at trial, he admitted to committing all the crimes with which he was charged.

After recounting these facts, the magistrate judge rejected Mr. West’s claim the trial court improperly failed to instruct the j ury on the defense of automatism. In exhaustive detail, the magistrate judge explaine d that under Oklahoma law, the automatism instruction and defense are inappropriat e and unavailable where, as here, the defendant voluntarily consumes a drug. 5 She further pointed out that the jury was properly instructed on the defendant’s vol untary use of drugs, as6In reviewing the jury instructions on automatism and on flight, the magistrate

judge relied on our ruling in Nguyen v. Reynolds , which states, “[a]s a general rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings, unless they are so fundamentally unfair as to deprive [a] petitioner of a fair trial and to due process of law.” 131 F.3d 1340, 1357 (10th Cir. 1997) (quotation marks and citations omitted). See also Dockins v. Hines , 374 F.3d 935, 938-39 (10th Cir. 2004). -6- supported by the evidence and unchallenged by the d efense, as well as the insanity instruction, as requested by the defense, and that the sua sponte omission of the automatism instruction, which the defense ne ver requested at trial, did not render his trial fundamentally unfair. 6

The magistrate judge also addressed Mr. West’s clai m the trial court erroneously instructed the jury to consider Mr. Wes t’s flight as substantive evidence of guilt. After reviewing the flight inst ruction given and the Oklahoma Court of Criminal Appeals’ decision that the eviden ce at trial supported the instruction, the magistrate judge concluded the state court’s determination was reasonable and the instruction did not render Mr. W est’s trial “fundamentally unfair.” Specifically, the magistrate judge noted Mr. West committed each crime at different locations, all of which he left, and t hat the jury could reasonably conclude, beyond a reasonable doubt, that his deter mination to leave the scene of each crime was based on his conscious guilt over th e crimes he committed, including his admission at trial that he began to d rive faster and to run on foot to7The magistrate judge relied on Jackson v. Virginia , to conclude:

In reviewing the sufficiency of the evidence supporting a conviction for purposes of habeas corpus relief, clearly established Supreme Court precedent provides that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). See also Dockins , 374 F.3d at 939. -7- “get away from the police.”

Finally, the magistrate judge rejected Mr. West’s c laim the State failed to prove beyond a reasonable doubt the state-of-mind e lements of the crimes charged. After considering the standard of review, 7the magistrate judge pointed out Mr. West confessed and admitted to all the crim es he was charged with committing. While Mr. West relied on the insanity defense and offered evidence in support of that defense, contending a demon or G od possessed him and spoke to him, the magistrate judge determined the evidenc e, reviewed as a whole, established a rational jury could find beyond a rea sonable doubt he possessed the requisite intent to commit the crimes with which he was charged and to which he admitted.

After considering all three of the aforementioned c laims, the magistrate-8-

judge determined Mr. West failed to show the Oklaho ma Court of Criminal Appeals’ rejection of those claims was contrary to, or an unreasonable application of, firmly established federal law, as determined b y the Supreme Court, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. After a de novo review and consideration of Mr. West’s objections to the Recommendation, the district court adopted the magistrate judge’s Recommendation and denied Mr. West’s habeas petition.

On appeal, Mr. West renews the same three claims ra ised in his petition, rejected by the district court, and recounted in ou r preceding discussion of the magistrate judge’s Recommendation. In support of t hose claims, he makes the same or similar arguments presented in his habeas p etition.

An appeal may not be taken from a final order in a § 2254 proceeding without a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). To be entitled to a certificate of appealability, a petitioner mus t make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petition er must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional-9-

claims debatable or wrong.” Miller-El v. Cockrell , 537 U.S. 322, 338 (2003) (quotation marks, alteration, and citation omitted) . This is a threshold inquiry we apply to determine whether we may entertain an appe al. Id. at 336.

Applying these principles, we have conducted a revi ew of the pleadings, the record on appeal, and the district court’s decision . For purposes of judicial economy, we decline to duplicate the magistrate jud ge’s comprehensive analysis on the same issues presented to this court on appea l, other than to conclude Mr. West fails to make a substantial showing of the den ial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2).

Thus, for substantially the same reasons set forth in the magistrate judge’s August 30, 2004 Recommendation and the district cou rt’s September 10, 2004 Order, we DENY Mr. West’s request for a certificate of appealabil ity, DENY his request to proceed in forma pauperis , and DISMISS his appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge