* This order and judgment is not binding precedent, e xcept under the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

1 On September 24, 2001, petitioner filed a motion fo r oral argument. The motion is denied. 

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

### OCT 15 2001 

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

FLOYD HASKELL JUMP, JR.,

Petitioner-Appellant,

v. GARY GIBSON, Warden of the Oklahoma State Penitentiary,

Respondent-Appellee. No. 00-6350 (D.C. No. 99-CV-1499-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 12 We previously entered a jurisdictional show cause o rder directing the

parties to file briefs addressing the issue of whether Mr. Jump filed his notice of appeal in a timely manner. Having reviewed the parties’ briefs, we conclude that this appeal was filed in a timely manner and t hat we have jurisdiction over the appeal. -2- Petitioner Floyd Haskell Jump, Jr., appearing pro s e, seeks a certificate of appealability (COA) to appeal the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We deny his request for a COA and dismiss the appeal. 2

I. Mr. Jump and his co-defendant, Ray Newton Crabtree, were convicted in a joint trial in the District Court of McClain Coun ty, State of Oklahoma, of two counts of feloniously pointing a weapon and one cou nt of kidnaping, robbery, and burglary in the first degree. In a second stag e proceeding held pursuant to Okla. Stat. tit. 21, § 51(B), Mr. Jump and Mr. Crab tree were convicted of committing these offenses after former conviction o f two or more felonies, and the court sentenced both defendants to consecutive forty-year terms of imprisonment on each count. On direct appeal, the Oklahoma Court of Criminal Ap peals (OCCA) reversed the two convictions for feloniously pointi ng a weapon and affirmed Mr. Jump’s remaining convictions. Mr. Jump subsequ ently sought-3-

post-conviction relief in the state district court. The court denied Mr. Jump’s application for post-conviction relief, and the OCC A affirmed on appeal. Pursuant to 28 U.S.C. § 2254, Mr. Jump then filed apetition for writ of habeas corpus in the United States District Court for the Western District of Oklahoma asserting the following grounds for rel ief: (1) he was denied a fair trial because he was not granted a severance and tr ied separately from Mr. Crabtree; (2) his due process rights were violated as the result of a variance between the kidnaping charge and the jury instructi ons at trial; (3) he was subjected to double jeopardy in violation of the Fi fth Amendment and Oklahoma law because the burglary and robbery counts constituted a single offense; (4) his sentences were improperly enhanced because two of h is prior convictions were part of a single transaction; (5) the sentences imp osed were excessive; and (6) he was denied effective assistance of trial and appell ate counsel. The magistrate judge recommended to the district court that Mr. Ju mp’s habeas petition be denied. Mr. Jump filed objections to the magistrat e judge’s recommendations, but he only objected to the recommendations concerning his claims of denial of severance, double jeopardy, and ineffective assista nce of counsel. The district court rejected Mr. Jump’s objections and denied his habeas petition and application for a COA.3 Mr. Jump also claims he was prejudiced by the jointtrial because the jury

was not specifically instructed regarding the evide nce it was to consider as to each defendant, the jury did not make individualize d findings of guilt, and he had to share peremptory challenges. These claims are w ithout merit. First, Mr. Jump has failed to establish that there was evidence int roduced at trial that could only be properly considered by the jury as to Mr. Crabtr ee. Second, the record reveals that the jury was in fact separately instructed as to each defendant on each separate offense, see Ex. F to Respondent’s Resp. to Pet. for Habeas Corpus (Dist. Ct. Doc. No. 17), and that it made separate determinations of guilt for each defendant on each offense, see Trial Tr., Vol. II, at 439-42. Finally, (continued...) -4- II. Mr. Jump is seeking a COA on his claims of denial o f severance, double jeopardy, and ineffective assistance of counsel. I n order to receive a COA, Mr. Jump must make a “substantial showing of the de nial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
1. Severance “[W]hether the trial court erred in denying severan ce is generally a question of state law that is not cognizable on federal habe as appeal . . . [A] criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial.” Fox v. Ward , 200 F.3d 1286, 1292 (10th Cir.), cert. denied , 531 U.S. 938 (2000) (quotation omitted). Mr. Jump argues that he was prejudiced as a result of the st ate district court’s refusal to sever because he and Mr. Crabtree asserted mutuallyantagonistic defenses to the charges of burglary and robbery. We disagree. 33 (...continued)

because he is not challenging the impartiality of t he jury, Mr. Jump’s claim regarding peremptory challenges only raises state l aw issues, and it is not a proper basis for federal habeas relief. See Fox , 200 F.3d at 1293. -5- As we have previously recognized, Mutually antagonistic defenses are not prejudicial per se. In order to prevail on such a theory for severance, the defenda nt must show real prejudice, rather than merely note that each defend ant is trying to exculpate himself while inculpating the other. Suc h actual prejudice is shown if the defenses are truly mutually exclusi ve, such that the jury could not believe the core of one defense with out discounting entirely the core of the other. Id. at 1293 (quotations and citations omitted). The evidence at trial showed that only one of the d efendants actually entered the house of the victim and physically comm itted the burglary and robbery, and the witnesses at trial provided confli cting identification testimony concerning whether the individual was Mr. Jump or M r. Crabtree. Relying on the evidence that pointed to Mr. Crabtree as the indivi dual who directly committed the burglary and robbery, Mr. Jump claimed at trial that Mr. Crabtree acted alone with respect to these crimes. In response to this accusation, Mr. Crabtree pointed out to the jury that the victim of the burglary and robbery identified Mr. Jump as the perpetrator of the crimes. While undoubtably antagonistic, the antagonism betw een these defenses was insufficient to require severance. First, neit her Mr. Jump nor Mr. Crabtree4 See Okla. Stat. tit. 21, § 172 (“All persons concerned in the commission of

crime, whether it be felony or misdemeanor, and whe ther they directly commit the act constituting the offense, or aid and abet in it s commission, though not present, are principals”); OUJI-CR (2d) 2-6 (defining “aidin g and abetting” as acting “knowingly and with criminal intent . . . in instig ating, encouraging, promoting, or aiding in the commission of [a] criminal offense”); Spears v. State , 900 P.2d 431, 438 (Okla. Crim. App. 1995) (holding that “onl y slight participation is needed to change a person’s status from mere spectator into aider and abetter”); Washington v. State , 554 P.2d 819, 822 (Okla. Crim. App. 1976) (findin g sufficient evidence to support conviction for aidin g and abetting a burglary where there was evidence that either defendant or anotherindividual committed the illegal breaking, defendant was placed at the scene of the crime, and defendant was found with stolen property after the crime); Henson v. State , 500 P.2d 859, 860-61 (Okla. Crim. App. 1972) (finding sufficient evidence to support conviction for aiding and abetting a burglary where , even though there was no evidence the defendant participated in the actual e ntry into the premises, the (continued...) -6- disputed that they were in the immediate vicinity o f the victim’s house at the time the burglary and robbery were committed. Second, t he evidence established that the two men had acted in concert in committing a se parate kidnaping immediately prior to the commission of the burglary and robberyand that they were subsequently apprehended together after attempting to flee in the truck that was stolen during the burglary and robbery. Based on this evidence, the jury could have reasonably concluded that, even if Mr. Crabtre e was the one who directly committed the burglary and robbery, Mr. Jump acted in concert with him, and he acted knowingly and with criminal intent in instigating, promoting, or encouraging the commission of these crimes. Under Oklahoma law, this was sufficient to convict Mr. Jump of aiding and abetting the burglary and robbery. 44 (...continued)

evidence showed that defendant had been operating avehicle in the area of the burglary in a suspicious manner, and defendant offe red no explanation for his suspicious behavior). -7- In sum, Mr. Jump’s defense to the burglary and robb ery charges was only mutually exclusive of Mr. Crabtree’s defense in terms of who directly committed the crimes, and the jury could have convicted Mr. J ump as a principal based on the aiding and abetting evidence standing alone. C onsequently, Mr. Jump cannot show sufficient actual prejudice as a result of the denial of his motion to sever, and we deny his request for a COA on this issue. Cf. Fox , 200 F.3d at 1294 (holding that felony murder defendant did not suffe r actual prejudice as a result of joint trial with co-defendant where, while each def endant tried to exculpate himself by inculpating the other in the actual comm ission of the murders, there was sufficient evidence to establish that both defe ndants participated in the underlying robbery, regardless of their relative cu lpability for the murders). 2. Double Jeopardy The Double Jeopardy Clause of the Fifth Amendment “ protects against multiple punishments for the same offense.” Cummings v. Evans , 161 F.3d 610, 614 (10th Cir. 1998) (quotation omitted). However, this protection is limited to determining “whether [the] state legislature intend ed to prescribe cumulative punishments for a single criminal incident, [and] w e are bound by a state court’s5 In addition, Mr. Jump’s convictions do not violate double jeopardy under

the “same-elements test” of Blockburger v. United States , 284 U.S. 299, 304 (1932). Under Blockburger , multiple convictions do not violate double jeopar dy if each offense requires proof of an element not contained in the other. United States v. Dixon , 509 U.S. 688, 696 (1993). Under Oklahoma law, di fferent elements are required to prove burglary and robbery, compare Okla. Stat. tit. 21, § 1431 (setting forth elements of burglary in first degree) with id. § 791 (setting forth elements of robbery), and it is therefore nota violation of double jeopardy to charge a defendant with both crimes based on a s ingle criminal episode. Cannon v. State , 827 P.2d 1339, 1342 (Okla. Crim. App. 1992). -8- determination of the legislature’s intent.” Id. at 615. “In other words, if the highest state court determines that the legislature intended to punish separate offenses cumulatively, a federal habeas court must defer to that conclusion.” Id. The OCCA, the highest court on criminal matters in Oklahoma, see Brecheen v. Reynolds , 41 F.3d 1343, 1348 n.2 (10th Cir. 1994), has heldthat burglary and robbery are separate offenses under Ok lahoma law and that cumulative convictions for both do not violate double jeopardy. Taylor v. State , 889 P.2d 319, 339 (Okla. Crim. App. 1995). 5 Accordingly, Mr. Jump is not entitled to a COA on his double jeopardy claim. 3. Ineffective Assistance of Trial and Appellate C ounsel The district court found that Mr. Jump procedurallydefaulted on his claim that he received ineffective assistance of trial co unsel by failing to raise it on direct appeal. Having determined that the requirements of English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998) were satisfied , we deny Mr. Jump’s-9-

request for a COA on this claim. Because he has fa iled to make a substantial showing that his appellate counsel’s performance wa s deficient and prejudicial as required by Strickland v. Washington , 466 U.S. 668, 687 (1984) and its progeny, we also deny Mr. Jump’s request for a COA on his claim of ineffective assistance of appellate counsel. For the reasons set forth above, we find that Mr. J ump has not made a substantial showing of the denial of a constituti onal right, and we therefore DENY his request for a certificate of appealability and DISMISS the appeal.

Entered for the Court

David M. Ebel Circuit Judge