* This order and judgment is not binding precedent, e xcept under the doctrines

of law of the case, res judicata, and collateral es toppel. The court generally disfavors the citation of orders and judgments; nev ertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### DEC 2 1997 

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

ROBERT E. TURNER,

Petitioner-Appellant,

v. RON CHAMPION; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 97-6018 (D.C. No. 94-CV-727) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.-2-

Petitioner was tried in Oklahoma for the shooting d eath of his wife. The jury rejected his accidental-death defense, found h im guilty of murder, and imposed a life sentence. After an unsuccessful app eal and application for postconviction relief, he filed this habeas action in M ay 1994. The magistrate judge issued successive recommendations, rejecting claims raised in the initial petition and a subsequent amendment. The district court ado pted both, dismissed the petition, and denied a certificate of probable caus e (CPC) for appeal. We also deny a CPC and, accordingly, dismiss the appeal. The initial petition raised: (1) insufficiency of t he evidence; (2) admission of expert weapons testimony allegedly encroaching upon the province of the jury to find intent; (3) use, without requisite notice, of “prior bad act” evidence of marital discord; (4) failure to instruct on misdeme anor-manslaughter (in addition to heat-of-passion and culpable-negligence manslaug hter); and (5) ineffective assistance of trial counsel, who did not obtain jury voir dire, opening statement, and closing argument transcripts. The amended peti tion added: (6) ineffective assistance of appellate counsel--in several respect s, though the only one preserved for our review by objection to the magistrate judge ’s recommendation, see International Surplus Lines Ins. Co. v. Wyoming Coa l Ref. Sys., Inc. , 52 F.3d 901, 904 (10th Cir. 1995), concerns counsel’s failu re to seek reversal on the ground that the trial court should have ordered a c ompetency hearing.-3-

On habeas, we review the district court’s legal con clusions de novo and factual findings for clear error. See Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied , 117 S. Ct. 1703 (1997). We have considered the record carefully an d are in substantial accord with the thorough analyses set out by the magistrat e judge and district court. The trial record shows a heated conflict between pe titioner and his wife culminating on the night of the shooting; a crime s cene suggesting she sought refuge behind a (battered) bathroom door and was se ated in a cowering position when shot; a murder weapon safeguarded from the kin d of accidental discharge alleged by petitioner; and incriminating post-shoot ing utterances from petitioner which did not mention his subsequent claim of accid ent. Certainly, a rational trier of fact could have found petitioner guilty of firstdegree murder beyond a reasonable doubt. See generally Jackson v. Virginia , 443 U.S. 307, 324 (1979). The admission of testimony concerning a quarrel, we eks before the shooting, between petitioner and his wife over her job, even if lacking the notice required by a state “prior bad act” rule, would notjustify habeas relief. Such evidence was merely cumulative to a similar episode directly associated with the shooting, and this whole showing of motive should h ave come as no surprise to the defense. The challenged evidence did not rende r petitioner’s trial “fundamentally unfair.” See Hopkinson v. Shillinger , 866 F.2d 1185, 1197 (10th Cir. 1989).-4-

The state firearms expert properly explained the ph ysical properties of the murder weapon. This objective testimony did not en croach upon the jury’s consideration of petitioner’s intent or his acciden tal-death defense, it informed that consideration. Though, at one point, the expe rt did indicate the weapon’s half-cock safety and heavy trigger pull would requi re the user to “consciously” pull the trigger, this loosely subjective testimony was elicited, without objection, by defense counsel. Moreover, the jury was instruc ted that it could reject expert testimony. No fundamental error warranting habeas relief was committed. Petitioner contends the refusal to instruct on misd emeanor-manslaughter requires reversal of his conviction under Beck v. A labama , 447 U.S. 625, 638 (1980) (state “is constitutionally prohibited from withdrawing [a lesser offense] option from the jury in a capital case”), because h e faced the possibilityof a death sentence. We rejected the same contention in Truji llo v. Sullivan , 815 F.2d 597 (10th Cir. 1987). Under Trujillo , this is a non capital conviction to be affirmed unless “the evidence so overwhelmingly supports a l esser included offense instruction” that its absence was a “fundamental mi scarriage of justice.” Id. at 603-04. Petitioner’s unsubstantiated speculation a bout possible predicate offenses for the proposed instruction falls far sho rt of this standard. Moreover, as two manslaughter instructions were given, relief wo uld not be warranted even if Beckand not Trujillo controlled. See Schad v. Arizona , 501 U.S. 624, 646-48 (1991) (Beckrule inapplicable when at least one lesser offense instruction given).-5-

The district court rejected the ineffective assista nce of trial counsel claim because petitioner did not identify any defense obj ections undercut by the lack of jury voir dire, opening statement, and closing argu ment transcripts. Petitioner’s conclusory and conjectural assertion on appeal thatthese were “critical portions of the trial proceedings where common errors occur, ” Appellant’s Opening Br. at 12i, clearly does not remedy the inadequacy of his showing below. Finally, we agree with the district court’s assessm ent of petitioner’s claim of ineffective assistance of appellate counsel. No thing in the surrounding circumstances should have prompted the trial court, sua sponte, to inquire into petitioner’s competence to stand trial and, thus, appellate counsel was not ineffective for failing to raise the issue. Petitioner’s application for a certificate of proba ble cause is DENIED. The appeal is, accordingly, DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge