* This order and judgment is not binding precedent, e xcept under the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 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL JAMES LAWRENCE,

Petitioner-Appellant,

v. EDWARD L. EVANS,

Respondent-Appellee. No. 96-6396 (W. District of Oklahoma) (D.C. No. CIV-96-963-M)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO, and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. Michael James Lawrence appeals the denial of his pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . This court concludes, for1 Lawrence was also charged with first degree murder, but the jury acquitted

him on that count. -2- substantially the reasons set forth in the Magistrate Judge’s Report and Recommendation which was adopted by the district co urt, that Lawrence is not entitled to a Certificate of Appealability and ther efore DISMISSES the appeal. 28 U.S.C. § 2253(c)(1)(A) (providing that a petitio ner may not appeal the denial of a § 2254 petition unless he first obtains a Cert ificate of Appealability). Lawrence was convicted by a jury on one count of fe lonious possession of a firearm and three counts of attempted subornation o f perjury in connection with the shooting and death of Lawrence’s ex-girlfriend. 1 In appealing the denial of his petition for writ of habeas corpus, Lawrence re alleges the following three claims which he made to the Oklahoma Court of Crimi nal Appeals and the district court: 1) there was insufficient evidence to support his conviction of subornation of perjury; 2) the trial court erred in refusing Lawrence’s proposed jury instruction regarding duress as a defense to feloni ous possession of a firearm; and 3) the trial court erred in failing to give a jury instruction on the defense of necessity. Under the Antiterrorism and Effective Death PenaltyAct of 1996, Pub. L. No. 104-132, 110 Stat. 1214, Lawrence may not be gr anted habeas relief unless the state court adjudication of his claim (1) resul ted in a decision that was-3-

contrary to, or involved an unreasonable applicatio n of clearly established federal law as determined by the United States Supreme Court; or (2) resulted in a decision that was based on an unreasonable determin ation of the facts in light of the evidence presented in the state proceeding. 28 U.S.C. § 22543(d). In the instant petition, Lawrence has merely realle ged several of the statebased legal arguments he made on direct appeal to t he Oklahoma Court of Criminal Appeals. Federal habeas corpus, however, “does not serve as an additional appeal from State court conviction.” Sinclair v. Turner , 447 F.2d 1158, 1161 (10th Cir. 1971). Lawrence has failed t o show that the state adjudication involved an unreasonable application o f clearly established federal law. 28 U.S.C. § 2254(d). With respect to Lawrence’s claim that the evidence of his subornation of perjury was insufficient to sustain a conviction, L awrence claimed the three witnesses who testified for the prosecution were no t credible. As noted by the district court, however, the evidence construed in the light most favorable to the prosecution was that Lawrence “approached each of these three witnesses and asked them to testify falsely under oath.” The dis trict court correctly concluded that from this evidence, that a rational trier of f act could have found the essential elements of attempted subornation of perjury on all three counts. See Jackson v. Virginia , 443 U.S. 307, 324 (1979) (holding that on habeas claim based on2 Unpublished disposition cited as persuasive authori ty pursuant to 10th Cir.

R. 36.3. -4- insufficiency of evidence, petitioner must prove “n o rational trier of fact could have found proof of guilt beyond a reasonable doubt ”); Okla Stat. Ann. tit. 21, § 504 (West 1983) (spelling out substantive elements)

. Lawrence also argues that the state failed to prove an additional element required for a charge of suborning perjury: that th e witnesses agreed to testify falsely. The Oklahoma Court of Criminal Appeals, h owever, in deciding against Lawrence, chose not to adopt that element as necess ary to prove subornation of perjury. Because the elements of a crime are a matter of state law, the district court correctly rejected this argument as well. See Bond v. Oklahoma , 546 F.2d 1369, 1377 (10th Cir. 1976). The district court furthermore appropriately reject ed Lawrence’s arguments that the trial court should have given his proposedinstruction of duress as a defense to the charge of felonious possession of a firearm, and should have sua sponte given an instruction on the defense of necessity. Whether duress or necessity are defenses to the crime of felonious po ssession of a firearm is a question of state law. See Romero v. Henson , No. 90-F-550, 1991 WL 197004, at **1 (10th Cir. Oct. 2, 1991). 2Under Oklahoma law, to convict a person charged with felonious possession of a firearm, the state n eed only prove “that the-5-

defendant had a prior felony conviction and that he carried a pistol on his person”; self-defense is not available in response to a charge of felonious possession of a firearm. Griffin v. West , 791 F.2d 1578, 1580 (10th Cir. 1986). Thus, the trial court was not required to instruct the jury on Lawrence’s selfdefense theories. Because Lawrence fails to make a “substantial showi ng of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2), this court DENIES Lawrence a certificate of appealability and DISMISSES his appeal. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge