* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### MAR 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DAVID J. WALKER,

Petitioner-Appellant,

v. KEN KLINGER,

Respondent-Appellee. No. 97-6193 (D.C. No. 96-CV-124-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Petitioner David J. Walker, appearing pro se, appea ls from the district court’s orders adopting the recommendations of the magistrate judge to dismiss his petition for a writ of habeas corpus filed purs uant to 28 U.S.C. § 2254. The habeas petition was filed on January 25, 1996, befo re enactment of the-2-

Antiterrorism and Effective Death Penalty Act (AEDP A). Consequently, AEDPA does not apply. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997). Petitioner’s request to proceed in forma pauperis on appeal is g ranted. We deny issuance of a certificate of probable cause, and affirm. Petitioner was convicted in an Oklahoma state courtof trafficking in illegal drugs and possession of a firearm while committing a felony, based in part on his admission that he was in possession of 9.56 grams o f cocaine base. On appeal, he argues that the trial court prevented him from p resenting evidence and jury instructions that the cocaine base was for his pers onal use and, therefore, he was guilty only of simple possession of cocaine base. He further claims that the Oklahoma state statute under which he was convicted , Okla. Stat. tit. 63, § 2-415, is constitutionally infirm because it requires thata defendant be convicted of drug trafficking based solely on the amount of cocaine b ase he possessed. The record reflects that the trial court permitted the jury to hear petitioner’s evidence that the amount of cocaine base in his pos session was suitable for personal use. We have considered petitioner’s argument that the trial court improperly refused his tendered jury instructions i n the context of the entire trial. We hold that petitioner has failed to demonstrate e rrors in the jury instructions that rendered his trial fundamentally unfair. See Nguyen v. Reynolds , 131 F.3d 1340, 1357 (10th Cir. 1997).-3-

Petitioner next claims that Okla. Stat. tit. 63, § 2-415 is unconstitutional because it permitted him to be convicted of the cri me of drug trafficking based solely on the amount of cocaine base in his possess ion, even though there was no evidence that he intended to sell the cocaine ba se. Section 2-415 applies to persons convicted of violations involving possessio n of cocaine base, see id. , § 2-415(A)(7) & (B)(2), in quantities of five grams or more, see id. , § 2-415(C)(7). Petitioner concedes that his admiss ion that he possessed 9.56 grams of cocaine base brings him within the purviewof § 2-415. He asserts that the statute creates a factual presumption of traffi cking based solely on the amount of cocaine base in his possession, in violation of his constitutional right to due process. Even though this claim was not exhausted in state c ourt, we have jurisdiction and will consider it because, consider ing Oklahoma law, additional state court proceedings would not be helpful. See Granberry v. Greer , 481 U.S. 129, 131 (1987). On habeas review, we are bound bya state court’s application or interpretation of state law unless it violates f ederal law. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Bowser v. Boggs , 20 F.3d 1060, 1065 (10th Cir. 1994). Oklahoma has considered the argument raised here by petitioner, and concluded that § 2-415 “does not cr eate a presumption a defendant sold the drugs or intended to sell drugs. Rather, the Legislature . . . has defined-4-

‘trafficking’ as possessing specific amounts of a c ontrolled dangerous substance.” Anderson v. State , 905 P.2d 231, 233 (Okla. Crim. App. 1995). Secti on 2-415 recognizes the legislative intent “that those who p ossess [a drug in excess of a specified amount] deserve a stiff punishment.” Id. (quotation omitted). Petitioner does not allege that federal law prohibits imposing increasingly severe sentences as the amount of cocaine base involved increases. Therefore, we hold that petitioner has failed to establish “that he is in c ustody in violation of the Constitution or laws or treaties of the United Stat es.” 28 U.S.C. § 2254(a). The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge