UNITED STATES COURT OF APPEALS TENTH CIRCUIT

TRAVIS LEORNAL KIBBE, Petitioner-Appellant,

v. GREGG WILLIAMS, Warden, Respondent-Appellee. No. 10-7022 (D.C. No. CIV 06-478-RAW-KEW) (E.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , EBEL and LUCERO , Circuit Judges.
Petitioner Travis Leornal Kibbe appeals fro m the district court’s dismissal of his 28 U.S.C. § 2254 petition. Afte r consideration of the issues raised by Kibbe, we deny his request for a certificate of appealability.

I. Background On November 30, 2001, Jame s Gibson stabbed Kibbe after the two of them, along

* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppe l. It may be cited, howev er, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 20, 2010
Elisabeth A. Shumaker Clerk of Court2 with Kibbe’s wife, had apparently been sni ffing paint to get high. Kibbe was in the hospital for ten days and spent several add itional months regaining his strength. The following summer, on Ju ly 8, 2002, Kibbe saw Gibson sitting on a bench outside a Wal-Mart. According to the evidence presented at trial, Kibbe walked up to Gibson, asked him if he was James Robert Gibson and, upon Gi bson answering in the affirmative, Kibbe stabbed Gibs on in the neck. Gibson died of his wound at the scene. Kibbe went to a friend’s house and told his fri end that he stabbed Gi bson. Afterwards, he went home and, upon learning that Gibson ha d died, told his wife and two neighbors that “I meant to kill the son of a bitch.” (R eport and Recommendation at 5 (quoting trial transcript).) Kibbe was arrested and relied principally on a self-defense theory at trial. He was convicted of murder in the fi rst degree in Sequoyah County District Court in Oklahoma and sentenced to life in prison. His convictio n was upheld on direct appeal in Oklahoma, and his petition for post-conviction relief wa s denied by the Oklahoma state courts. He then brought this habeas action pursu ant to § 2254, advancing twelve grounds for relief. The district court adopted the report and recommendation of the magistrate judge, denying relief and dismissing the acti on. Judgment was entered on March 31, 2010. Kibbe then filed a tim ely notice of appeal, and the district court denied him a certificate of appealability (COA). After filing his notice of appeal, Kibbe filed two motions in the district court premised upon an issue not raised in his orig inal habeas petition. In the first motion,3 entitled “Motion to Alter or Amend Judgment,” he requested that the district court amend its judgment, pursuant to Federal Rule of Ci vil Procedure 59(e), and that it consider an additional ineffective assistance of counsel claim: that his tr ial counsel was ineffective for failing to present an insanity defense. Th e second substantive post-judgment motion he filed was a “Motion to Supplement Habeas Corpus Petition or Ho ld Proceeding in Abeyance,” in which he sought to amend his habeas corpus petition, pursuant to Federal Rule of Civil Procedure 15, by adding the new ineffective assistance claim, or to hold the petition in abeyance while he so ught to exhaust the claim in state court. While these motions were pending in the district court, th is court tolled briefing and abated the appeal while the district court resolved the Rule 59 motion. On Ma y 14, 2010, the district court denied both motions, concludi ng that no grounds justified permitting Kibbe to amend the original habeas petition, after judgment was entered, by adding an additional, unexhausted claim. He did not file a notic e of appeal, or amend his prior notice of appeal, in light of this order.

II. Discussion Kibbe seeks a COA from this court, as he may not appeal in the absence of a
COA. See 28 U.S.C. § 2253(c)(1). To obtain a COA, Kibbe must show “that reasonable jurists could debate whether (or, for that ma tter, agree that) the pe tition should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000)4 (quotations omitted). Kibbe has identified seven issues in his ap plication for a COA, but several of these concern the same claim: his claim that counsel was ineffe ctive for failing to raise an insanity defense. This clai m was not included in his origin al habeas petition. The first time he presented this claim to the district court was in the two post-judgment motions mentioned above, filed after the district c ourt had already denied his habeas petition and entered judgment accordingly, and after he had already filed his notice of appeal. We thus face the preliminary question of wh ether this claim is properly before us, as the claim is not included in the notice of appeal. We possess jurisdiction to address only those issues raised in the not ice of appeal. Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997). Kibbe’s notice of appeal, ho wever, concerned only the district court’s judgment, on March 31, 2010, denying his original habeas petition. He never filed a subsequent notice of appeal in cluding the denial of his Rule 59(e) motion, nor did he seek to amend his original notice of appeal. See Fed. R. App. P. 4( a)(4)(B)(ii) (“A party intending to challenge an order disposing of [a Rule 59(e) motion] must file a notice of appeal, or an amended notice of appeal . . . within the time prescr ibed by this Rule measured from the entry of the order disposi ng of the last such remaining motion.”); see also Fed. R. App. P. 3(c)(1)(C) (stating that a notice of appeal must “designate the judgment, order, or part thereof bei ng appealed”); Smith v. United States , 561 F.3d 1090, 1096 (10th Cir. 2009) (exercisi ng jurisdiction over the appeal of a denial of a Rule 59(e) motion because the plaintiff filed a separate no tice of appeal relating specifically to the5 Rule 59(e) denial). Therefore, we lack jurisd iction to consider the claims raised by Kibbe in his Rule 59 motion. 1 Kibbe’s remaining issues do not merit issu ance of a COA, either. Kibbe raises a couple of evidentiary i ssues that he claims deprived hi m of a fair trial—specifically, the introduction of an autopsy photograph of the vi ctim and the introduction of other bad acts evidence—but neither of these alleged erro rs approach the high standard for finding constitutional error. See Duckett v. Mullin , 306 F.3d 982, 999 (10th Cir. 2002) (“We may not provide habeas corpus relief on the ba sis of state court evidentiary rulings unless they rendered the tria l so fundamentally unfair that a denial of constitutional rights results.” (internal quotations omitted)). We ar e similarly unconvinced that the failure to include a jury instruction on voluntary intoxication rose to the level of constitutional
error. See Tiger v. Workman , 445 F.3d 1265, 1267 (10t h Cir. 2006) (“Unless the constitution mandates a jury instruction be give n, a habeas petitioner must show that, in the context of the entire trial, the error in the instruction was so fundamentally unfair as to deny the petitioner due proce ss.”). Finally, we find no meri t to Kibbe’s claim that the magistrate judge applied the wrong standard to determine whether several of his claims were procedurally barred. The magistra te judge employed the familiar cause-and-

1 Nor do we have jurisdiction over Kibb e’s Motion to Supplement Habeas Corpus Petition or Hold Proceeding in Abeyance. That motion was filed after judgment was entered, and was thus either (1) an attempt to file a second or successive petition for habeas relief—which is prohibited, at least under these circumstan ces, by 28 U.S.C. § 2244(b)(2)—or (2) a post-judgm ent motion that is not raised in the notice of appeal. Either way, this court lack s jurisdiction to consider it.6 prejudice or fundamental-misc arriage-of-justice standard, wh ich remains the appropriate standard to apply when consid ering whether procedural default bars review of the claim by a federal court. See Welch v. Workman , 607 F.3d 674, 685 (10th Cir. 2010) (“We may not consider issues raised in a habeas pe tition that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscar riage of justice.” (internal quotations omitted)). Therefore, issuance of a COA is in appropriate because none of these claims provide a ground upon which “reasonable ju rists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner,” nor do these claims “deserve encouragem ent to proceed further.” Slack , 529 U.S. at 484 (quotations omitted).

III. Conclusion Accordingly, we DENY Kibbe’s application for a COA.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge