* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, 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

NOV 29 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES RICHARD BIBBEE,

Petitioner-Appellant,

v.

H. N. SCOTT,

Respondent-Appellee.

No. 98-6445

(D.C. No. CV-98-378-C)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 The information is not in the record on appeal, and it is unclear whether it

was included in the district court record. The parties both state that Bibbee was

charged with first-degree murder. Bibbee states that the preliminary information

charged defendant with “Murder in the First Degree and that crime’s lesser

included offenses.” Appellant’s App., doc. 8 at 4 (petitioner’s memorandum brief

filed in federal district court). 

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James Richard Bibbee, an Oklahoma state prisoner, appeals the district

court’s dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. He raises one issue: whether his due process rights were violated when

he was charged with first-degree malice murder, but convicted of second-degree

depraved mind murder. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

BACKGROUND

In July 1991, Bibbee, “who had been drinking and was perhaps enraged by

a homosexual advance, beat the victim with his fists, kicked him with his boots,

and jumped on him, knocking him out,” Appellant’s Br. at 10, and left him by the

side of the road, see Appellant’s App., doc. 7 at 7. The beating caused the

victim’s death. The State filed an information charging Bibbee with first-degree

malice murder. 1

At trial, Bibbee maintained that he was acting in self-defense. In addition,

he presented the testimony of a psychologist that, as a teenager, Bibbee had been

the victim of a homosexual assault and any similar incident would trigger a quick
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response from Bibbee. The jury was instructed on first-degree malice murder,

second-degree depraved mind murder, and first-degree heat of passion

manslaughter. Counsel for Bibbee objected to the second-degree murder

instruction, arguing that the evidence did not support it, and proposed an

instruction on second-degree manslaughter (culpable negligence).

The jury found Bibbee guilty of second-degree murder. The Oklahoma

Court of Criminal Appeals upheld the conviction in a summary disposition of his

direct appeal. Subsequently, the state trial court denied Bibbee’s counseled

application for post-conviction relief. While the appeal of that order was

pending, the Oklahoma Court of Criminal Appeals issued Willingham v. State ,

947 P.2d 1074, 1080-82 (Okla. Crim. App. 1997), cert. denied , 118 S. Ct. 2329

(1998), which held that, under the Oklahoma murder statutes, second-degree

depraved mind murder is not a lesser-included offense of first-degree malice

murder. Bibbee then attempted to add an argument about the second-degree

murder instruction to his post-conviction appeal. The Oklahoma Court of

Criminal Appeals affirmed the denial of post-conviction relief and denied

permission to amend, stay, or remand.

Bibbee then filed a petition for habeas corpus in the federal district court,

arguing that, under Oklahoma law, the state trial court lacked jurisdiction to try

him for second-degree murder because that offense was not charged in the
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information and the lack of jurisdiction amounted to a due process violation. The

district court determined that “[e]ven assuming federal rights are implicated, if

state law permits the jury’s consideration of other forms of homicide, no due

process right has been violated.” Appellant’s App., doc. 6 at 2. The court

concluded that the instruction and conviction were not contrary to state law, and,

therefore, there was “no error, constitutional or otherwise.” Id. A grant of

certificate of appealability and this appeal followed.

DISCUSSION

Bibbee filed his habeas petition after the April 24, 1996 effective date

of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under

the standards of AEDPA, a habeas claim may be granted only if state court

proceedings:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254(d). See also Hooks v. Ward , 184 F.3d 1206, 1213 (10th Cir.

1999).

There are two strands to Bibbee’s claim that he was denied his federal

constitutional right to due process of law: (1) the trial court lacked jurisdiction
2 The elements of first-degree malice murder are: “(1) unlawful (2) death

of a human (3) caused by another (4) with malice aforethought.” Willingham ,

947 P.2d at 1081 (citing Okla. Stat. tit. 21, § 701.7(A) (1995 Supp.))

3 The elements of second-degree “depraved mind” murder are: “(1) death of

a human; (2) caused by conduct which was imminently dangerous to another

person; (3) the conduct was that of the defendant; (4) the conduct evinced a

(continued...)

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to subject him to a second-degree murder instruction; and (2) he had received

no notice that he would be subjected to a second-degree murder instruction. 

Both strands are tied to the Willingham holding.

In Willingham , a defendant convicted of first-degree malice murder

claimed that the district court had committed error by refusing “to instruct the

jury on the offense of second degree depraved mind murder as a ‘lesser included’

offense.” Willingham , 947 P.2d at 1079-80. After an examination and

interpretation of the Oklahoma murder statutes, the Oklahoma Court of Criminal

Appeals rejected this claim.

For an offense to be a lesser-included offense of a parent offense, the

elements of the prospective lesser-included offense must be a subset of those

contained in the parent offense. See Schmuck v. United States , 489 U.S. 705, 716

(1989). In Oklahoma, first-degree malice murder “requires an intent to kill,

regardless of the means used.” Willingham , 947 P.2d at 1081. 2 As of 1976, when

a statutory revision became effective, “[s]econd degree murder requires that the

defendant act with imminently dangerous conduct.” Id. 3

 The court conceived of
3

(...continued)

depraved mind in extreme disregard of human life; [and] (5) the conduct was not

done with the intention of taking the life of any particular individual.”

Willingham , 947 P.2d at 1081; Okla. Stat. tit. 21, § 701.8.

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“circumstances that first degree malice murder can occur without the use of

imminently dangerous conduct.” Id. It concluded, therefore, that “second degree

depraved mind murder is not necessarily included in a charge of first degree

malice murder.” Id.

Although the relevant statutory change occurred in 1976, the case law

“[a]pparently . . . failed to recognize” the consequences. Id. Accordingly, at the

time of Bibbee’s trial, Oklahoma courts treated second-degree depraved mind

murder as a lesser-included offense of first-degree malice murder. See Hooks,

184 F.3d at 1233 n.25 (explaining the effect of Willingham ); Boyd v. Ward ,

179 F.3d 904, 916 (10th Cir. 1999) (same).

A. Lack of trial court jurisdiction

Bibbee argues that the procedure followed in his case violated a

“fundamental procedural framework of Oklahoma jurisprudence, an action which

is itself a violation of the Fifth and Fourteenth Amendments’ core rights of

due process.” Appellant’s Br. at 14. The theory is that, in the absence of a filed

information alleging the essential elements of second-degree murder, the trial

court lacked jurisdiction to try him for that crime.
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Bibbee has identified inconsistencies in law and procedure. At the time of

his trial, Oklahoma courts had consistently held that an information setting out the

critical elements of the charged offense is the means by which the trial court is

vested with jurisdiction. See Miller v. State , 827 P.2d 875, 879 (Okla. Crim.

App. 1992) (holding that a failure to allege every material element of a crime was

fatal to jurisdiction), overruled by Parker v. State , 917 P.2d 980 (Okla. Crim.

App. 1996) (holding that “a trial court's jurisdiction is triggered by the filing of

an information alleging the commission of a public offense with appropriate

venue” and that “any failure to allege facts constituting the offense . . . does not

affect the trial court's jurisdiction.”). Bibbee’s jurisdictional argument is an

arguable application of the Willingham holding and the Miller rule.

 On federal habeas review, however,

we are not empowered to correct all errors of state law. See Jackson

v. Shanks , 143 F.3d 1313, 1317 (10th Cir. 1998). “[W]e may grant

habeas relief to a state prisoner only if state court error deprived him

of fundamental rights guaranteed by the Constitution of the United

States.” Id. (citation and internal quotation omitted).

Johnson v. Gibson , 169 F.3d 1239, 1252 (10th Cir.), cert denied , No. 99-5964,

1999 WL 688740 (U.S. Nov. 1, 1999). “Insofar as petitioner challenges the

adequacy of the information under Oklahoma law, this is a question of state law.” 

Id. It is therefore necessary to turn to the second strand of Bibbee’s appellate

argument to determine whether he has stated a valid habeas claim.
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B. Lack of adequate notice

 It is a basic principle of procedural due process “that notice of the specific

charge, and a chance to be heard in a trial of the issues raised by that charge, if

desired, are among the constitutional rights of every accused in a criminal

proceeding in all courts, state or federal.” Cole v. Arkansas , 333 U.S. 196, 201

(1948); see also Combs v. Tennessee , 530 F.2d 695, 698 (6th Cir. 1976)

(requiring notice with “[s]uch definiteness and certainty . . . as will enable a

presumptively innocent man to prepare for trial”). 

“In order to determine whether a defendant has received constitutionally

adequate notice, the court looks first to the information.” Calderon v. Prunty ,

59 F.3d 1005, 1009 (9th Cir. 1995). “A charging instrument may violate the Sixth

Amendment by failing to provide a defendant with adequate notice of the nature

and cause of the accusations filed against him.” Johnson , 169 F.3d at 1252. A

variance between the evidence adduced at trial and the facts alleged in an

information is reversible error “if the defendant is prejudiced in his defense

because he cannot anticipate from the [information] what evidence will be

presented against him. . . .” Rogers v. Gibson , 173 F.3d 1278, 1287 (10th Cir.

1999) (quotations and citation omitted).

It is generally accepted that a defendant has sufficient notice of an offense

included within an indictment charging a more aggravated degree of that offense.
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See Fransaw v. Lynaugh , 810 F.2d 518, 529 (5th Cir. 1987); see also Salinas v.

United States , 277 F.2d 914, 918 (9th Cir. 1960) (holding that first-degree arson

charge for burning a dwelling house provides notice of charge of second-degree

arson for burning a structure). “‘[I]t is inconceivable that in preparing a defense

against [the greater charge, the defendant] was precluded from adequately

defending himself against . . . a lesser included offense.” United States v. Cova ,

755 F.2d 595, 599 (7th Cir. 1985), overruled on other grounds by United States v.

Schmuck , 840 F.2d 384 (7th Cir. 1988), aff’d , 489 U.S. 705 (1989).

At the time of trial, Oklahoma courts treated second-degree depraved mind

murder as a lesser-included offense of first-degree malice murder. See Hooks,

184 F.3d at 1233 n.25 (declining to consider the State’s Willingham argument

because the decision post-dated petitioner’s trial by over eight years). 

Additionally, Oklahoma law required the district court “to instruct the jury on

every degree of homicide which the evidence in any reasonable view suggests.” 

Fowler v. State , 779 P.2d 580, 585 (Okla. Crim. App. 1989). In instructing on

second-degree murder, the state trial judge followed Oklahoma law as it then

existed.

Given the commonly-accepted state of the law, we cannot credit Bibbee’s

claim of “complete lack of notice [prior to the jury instruction conference] that he

would have to defend against the second-degree murder charge.” Appellant’s
4

 An appellant has the responsibility of providing us with the appropriate

record for appeal. Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 978 (10th Cir.

1992); Fed. R. App. P. 10(b)(2). We note that the record contains no factual

support for a contention that Bibbee was actually unaware of the potential for a

second-degree murder charge. At trial, counsel’s objection to the giving of a

second-degree murder instruction was based solely on the grounds that the

evidence did not support it.

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Reply Br. at 8. For Bibbee, a charge of first-degree malice murder provided

notice of the charge of second-degree depraved-mind murder offense. 4

 Therefore,

he was not deprived of his constitutional right to due process of the law.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court.

Entered for the Court

David M. Ebel

Circuit Judge