* Mike Mullin replaced Gary Gibson as Warden of the O klahoma State

Penitentiary effective March 25, 2002.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

*** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by desi gnation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 4 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JERRY LEE DAVIS,

Petitioner - Appellant,

v. MIKE MULLIN, * Warden, Oklahoma State Penitentiary,

Respondent - Appellee. No. 01-7152 D.C. No. 00-CV-54-S (E.D. Oklahoma)

ORDER AND JUDGMENT **

Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , *** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination-2-

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. Petitioner seeks a certificate of appealability (CO A) to obtain review of the district court’s order denying his petition for a writ of habeas corpus. His petition raised six issues, all of which were considered on the merits by the Oklahoma Court of Criminal Appeals and decided against him. Davis v. State , 993 P.2d 124 (Okla. Crim. App. 1999) The district court reviewe d the state court’s decision under the appropriate standard and also concluded p etitioner’s claims lacked merit. Because he has not made a substantial showi ng of the denial of a constitutional right, we deny his application and d ismiss the appeal. In both state and district court, petitioner arguedthat (1) his convictions for three separate offenses violated the principles of double jeopardy and double punishment; (2) his second trial was barred by the double jeopardy clause; (3) the evidence was insufficient to support his convictionfor larceny from a house; (4) his confession was involuntary because he did n ot waive his right to counsel and because he was not brought before a magistrate until a month after his arrest; (5) the trial court erroneously rejected requested jury instructions on the reliability of eyewitness identification testimony and the voluntariness of the confession; and (6) he was denied the right to a sp eedy trial.-3-

Petitioner is not entitled to a writ of habeas corp us on any claim adjudicated on the merits by a state court unless that adjudication: (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State Court proceeding. 28 U.S.C. § 2254(d); see also Williams v. Taylor , 529 U.S. 362, 412-13 (2000). Here, because the district court also rejected peti tioner’s constitutional claims on the merits, petitioner must demonstrate that reason able jurists would find that decision debatable or wrong. See Dennis v. Poppel , 222 F.3d 1245, 1249 (10th Cir. 2000). The Oklahoma Court of Criminal Appeals correctly co nsidered the three offenses of which petitioner was convicted under th e double jeopardy test of Blockburger v. United States , 284 U.S. 299, 304 (1932), and determined that eac h of the offenses charged contained elements the others did not. Davis , 993 P.2d at 125. The state court also determined that petit ioner’s retrial did not raise a double jeopardy issue because petitioner had moved for the mistrial based on witness testimony (in violation of a motion in limi ne) that was not caused by any actions of the state. Thus, the principles of Oregon v. Kennedy , 456 U.S. 667, 676 (1982) (only where governmental conduct was int ended to goad defendant into moving for mistrial may defendant raise double jeopardy bar to second trial),-4-

were not violated. Davis , 993 P.2d at 127. The state court further determi ned, based on a review of the record, that there was suf ficient evidence to support the conviction for larceny from a house conviction. Id. The district court likewise reviewed the state court record and concluded the e vidence was sufficient under the standards of Jackson v. Virginia , 443 U.S. 307 (1979). Our own review supports the conclusions of the state and district courts. Petitioner next contends that his confession was involuntary because he asked to speak with an attorney before being questi oned and did not waive his rights under Miranda v. Arizona , 384 U.S. 436 (1966). He further states the confession should have been suppressed because he w as not taken before a magistrate until a month after his arrest. The rec ord contains sufficient evidence to support the state court’s determination that pet itioner had knowingly and voluntarily waived his Miranda rights and that he had not asked to speak with an attorney. Under the totality of the circumstances, it is clear that the confession was voluntarily obtained. See Miller v. Fenton , 474 U.S. 104, 112 (1985). With regard to his claim that was not taken before a mag istrate in a timely manner, the state court did not address this as a separate issu e apart from a general determination that the confession was voluntary. T he district court did address the matter, however, and we concur with that court’ s evaluation. Petitioner has failed to establish how the voluntariness of his co nfession, which occurred on the-5-

day of his arrest, was affected by not appearing be fore a magistrate for a month.
See Castro v. Ward , 138 F.3d 810, 821 (10th Cir. 1998). Next, petitioner claims he was entitled to jury ins tructions on the issues of eyewitness testimony and the voluntariness of his c onfession. The Court of Criminal Appeals found no error as to the eyewitnes s testimony instruction and held that the lack of an instruction on the voluntariness of petitioner’s confession was harmless in view of the entire record. Davis , 993 P.2d at 127. The district court reviewed this issue under the appropriate standard requiring that a state court conviction be set aside in a habeas proceedin g only “when the errors had the effect of rendering a trial so fundamentally unfairas to cause a denial of a fair trial.” Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). Finally, petitioner claims he was denied his right to a speedy trial. The district court properly considered the factors enumerated in Barker v. Wingo , 407 U.S. 514, 530 (1972): length of the delay, rea sons for the delay, petitioner’s assertion of his right to a speedy trial, and preju dice. The record reflects that the delay was attributable at least in part to petition er, who at least once offered to plead guilty but changed his mind, changed attorney s, and waited nearly thirteen months to assert his speedy trial right. Petitione r has also failed to demonstrate any prejudice occasioned by the delay. He is there fore not entitled to habeas relief on this ground.-6-

For these and the reasons set forth by the districtcourt in its order of October 31, 2001, the application for a certificate of appealability is DENIED, the motion for relief from paying costs or fees is DENI ED, and the appeal is
DISMISSED.

Entered for the Court

Terrence L. O’Brien Circuit Judge