* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### SEP 27 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLEN CASEY EDWARDS, Petitioner - Appellant,

v. DAYTON J. POPPELL, Respondent - Appellee. No. 02-6004 (D.C. No. CIV-00-1301-L) (W. D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , 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. This case is before the court on a request by Allen Casey Edwards for a certificate of appealability (“COA”). Edwards seek s a COA so he can appeal the-2-

district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be take n from the denial of a § 2254 petition unless the petitioner first obtains a COA) . Because Edwards has not made a substantial showing of the denial of a const itutional right, he is not entitled to a COA and his appeal is dismissed. See id . § 2253(c)(2). After a jury trial, Edwards was convicted in Oklaho ma state court of one count of child abuse murder in the first degree. E dwards was sentenced to life imprisonment. Edwards filed a direct appeal with the Oklahoma Court of Criminal Appeals. Edwards’ appeal was denied and h is conviction affirmed. Edwards then filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 with the United States District Court for the Weste rn District of Oklahoma. Edwards’ § 2254 petition was referred to a United S tates magistrate judge for initial proceedings. See 28 U.S.C. § 636(b)(1)(B). The magistrate judge prepared a very thorough Report and Recommendation in which he addressed each of the five issues raised by Edwards. Ultimat ely, the magistrate judge recommended that Edwards’ petition be denied. Afte r considering Edwards’ timely-filed objections to the Report and Recommend ation, the district court denied Edward’s petition. In his application for a COA, Edwards presents a de tailed argument on only one issue addressed by the district court; whe ther the jury instruction on the-3-

elements of child abuse murder violated his due pro cess rights. Edwards argues that Enmund v. Florida , 458 U.S. 781 (1982) and Tison v. Arizona , 481 U.S. 137 (1987) require his conviction be supported by a jury finding of intent to injure. We agree with the district court that Enmund and Tison are inapplicable to the guilt phase of a criminal trial. See Cabana v. Bullock , 474 U.S. 376, 385 (1986).

“Enmund does not concern the guilt or innocence of the def endant—it establishes no new elements of the crime of murder that must be found by the jury. . . . Enmund holds only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murde r as defined by state law . . . .” Id .; see also Cannon v. Gibson , 259 F.3d 1253, 1270 n.15 (10th Cir. 2001) (“This court does not read Tison as addressing in any way the question whether [defendant’s] murder conviction is infirm because t he jury was not properly instructed at trial on the elements of malice murde r.”). Although it is unclear from his appellate brief, Edwards also appears to be seeking a COA on the other four issues he raised be fore the district court. Edwards presents no appellate argument on these fou r issues. This court, however, has reviewed Edwards’ appellate brief, the district court’s Order dated December 21, 2001, the Report and Recommendation dated January 16, 2002, and the entire record on appeal. That review clear ly demonstrates the district-4-

court’s denial of Edwards’ § 2254 petition is not d eserving of further proceedings or subject to a different resolution on appeal. Accordingly, we deny Edwards’ request for a COA and dismiss his appeal. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge