UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MILTON A. DEWBERRY, 

 Petitioner - Appellant, 

v. 

ROBERT PATTON, Director, 

 Respondent - Appellee. 

No. 16-6178 

(D.C. No. 5:15-CV-00980-HE) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Milton Dewberry, an Oklahoma state prisoner appearing pro se, seeks a 

certificate of appealability (“COA”) to appeal the district court’s denial of his 28 

U.S.C. § 2254 petition. We deny a COA and dismiss the appeal. 

I 

Dewberry was convicted of second degree burglary and possession of burglar’s 

implements following a jury trial in Oklahoma state court. He was sentenced to 29 

years’ imprisonment for the burglary conviction and one year for the misdemeanor 

possession charge, to run concurrently. Dewberry appealed his conviction and 

sentence to the Oklahoma Court of Criminal Appeals (“OCCA”), asserting nine 

 *

 This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

December 5, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

grounds for relief. The OCCA affirmed. Dewberry subsequently filed a 28 U.S.C. 

§ 2254 petition in the district court, asserting only two grounds for relief: (1) the 

trial court violated his due process rights by failing to instruct the jury on the lesser 

included offense of breaking and entering; and (2) the evidence was insufficient to 

support a guilty verdict on the burglary charge. The district court denied relief on the 

merits and declined to grant a COA. Dewberry now seeks a COA from this court. 

II 

A petitioner may not appeal a district court order denying federal habeas relief 

without a COA. § 2253(c)(1). We will grant a COA “only if the applicant has made 

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To meet 

this standard, a petitioner “must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). If a claim was adjudicated on the merits in 

state court, habeas relief will be granted only if the state court adjudication “was 

contrary to, or involved an unreasonable application of, clearly established Federal 

law” or “was based on an unreasonable determination of the facts.” § 2254(d). 

A 

 Dewberry argues that the trial court violated his due process rights by failing 

to instruct the jury on the lesser included offense of breaking and entering. However, 

there is no federal constitutional right to a lesser included offense instruction in a 

non-capital case. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). This circuit 

applies a rule of “automatic non-reviewability” to “claims based on a state court’s 
3 

failure, in a non-capital case, to give a lesser included offense instruction.” Id. 

Dewberry has thus failed to assert a cognizable claim for habeas relief on this basis.

B 

In his second claim for relief, Dewberry asserts that the evidence presented at 

trial was insufficient to support his conviction on the second degree burglary charge. 

In reviewing this claim, “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.” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). 

Dewberry only challenges the state’s proof on the final element of the charge: 

intent to steal or commit a felony.1

 Under Oklahoma law, such intent may be proved 

by circumstantial evidence, Lowe v. State, 673 P.2d 167, 168 (Okla. Crim. App. 

1983), and “a state court’s interpretation of state law . . . binds a federal court sitting 

in habeas corpus,” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). 

At trial, the prosecution introduced surveillance footage of the incident. The 

footage shows Dewberry and his co-defendant unsuccessfully prying on the metal 

bars surrounding an exterior air conditioning unit of a warehouse. Dewberry’s codefendant is then seen opening the door of the warehouse and proceeding inside, 

followed shortly after by Dewberry. Both men were in the warehouse for only a few 

moments before leaving, empty-handed. 

 1

 The elements of second degree burglary in Oklahoma are: (1) breaking; 

(2) entering; (3) a building; (4) in which property is kept; (5) with the intent to steal 

or commit any felony. Okla. Stat. tit. 21, § 1435. 
4 

The owner of the warehouse testified at trial that when the warehouse door is 

opened, it triggers an alarm system that makes a loud beeping noise for 

approximately twenty to thirty seconds, followed by the alarm itself. The owner also 

testified that although there was no indication anything had been moved or taken 

from the warehouse, the warehouse primarily contained large janitorial equipment 

that would have been difficult to move. One of the police officers who responded to 

the alarm also testified at trial. He stated that the only likely reason someone would 

pry on the metal bars on the exterior of the building would be to gain access to what 

they contained—the air conditioning unit. He further testified that an individual 

might steal an air conditioner for the copper inside. 

On direct appeal, the OCCA concluded that the evidence presented at trial 

“supported the finding that Dewberry entered the warehouse with the intent to steal 

property from inside.” It determined that “[t]he video showing Dewberry’s attempt 

to steal the air conditioner was . . . relevant circumstantial evidence of his continued 

intent to do the same once inside the building.” In addition, “[t]he fact that 

[Dewberry] left empty handed did not diminish the inference of his intent to commit 

larceny as the equipment inside was too large and heavy to be moved easily and the 

alarm sounded shortly after he entered.” 

Dewberry fails to rebut the correctness of the OCCA’s factual findings. 

28 U.S.C. § 2254(e)(1) (“The applicant shall have the burden of rebutting the 

presumption of correctness [of the state court’s factual findings] by clear and 

convincing evidence.”). In his application for a COA, Dewberry directly challenges 
5 

only the OCCA’s factual finding that he pried on the metal bars surrounding the 

exterior of the air conditioning unit, but that finding is reasonably supported by the 

surveillance video. Moreover, these facts are sufficient circumstantial evidence from 

which a rational juror could conclude that Dewberry broke into the warehouse with 

the intent to steal property inside. See Dockins, 374 F.3d at 939-40 (applying 

deference under Antiterrorism and Effective Death Penalty Act to deny COA on 

sufficiency of evidence claim, where intent to steal was demonstrated by fact that 

petitioner entered victim’s home by breaking rear window and attempted to flee from 

police). Accordingly, we conclude the district court’s denial of habeas relief is not 

debatable. 

III 

For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

Dewberry’s motion to proceed in forma pauperis is GRANTED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge