* This order and judgment is not binding precedent, except under the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

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

### MAR 17 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOOKER T. WASHINGTON, Petitioner-Appellant,

v. H.N. SCOTT, Respondent-Appellee, and THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondent. No. 98-6376 (D.C. No. 97-CV-597-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T herefore, the-2-

case is ordered submitted without oral argument. Plaintiff Booker T. Washington, a state prisoner ap pearing pro se, seeks a certificate of appealability to appeal the districtcourt’s dismissal of his 28 U.S.C. § 2254 habeas petition. As Washington has failed t o make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss the appeal

. Washington was convicted by jury in December 1994 o f assault and battery with a dangerous weapon. See Okla. Stat. Ann. tit. 21, § 645 (West 1983). Because he had two or more prior felony convictions , he was sentenced to twentyeight years’ imprisonment. His direct appeal was a ffirmed by the Oklahoma Court of Criminal Appeals. Washington filed his habeas petition on April 21, 1997. Voir dire record Washington contends the state trial court deprived him of due process by denying his request for a full voir dire record. T o establish a due process violation, Washington must show the lack of a voir dire record specifically prejudiced his appeal. See White v. Florida Dep’t of Corrections , 939 F.2d 912, 914 (11th Cir. 1991). Washington alleges no specif ic prejudice, but claims absence of a full voir dire record prevents proper consideration of his claim. This argument ignores the basic legal premise that it is Washington, as the habeas-3-

petitioner, who bears the burden of proof in a coll ateral attack on his conviction. See Sanchez v. Mondragon , 858 F.2d 1462, 1464 (10th Cir. 1988). Washington also argues the state court’s ruling on the voir dire record contravened Oklahoma law. Federal habeas relief do es not extend to alleged errors of state law. Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). We are empowered to grant habeas relief to a state prisone r only if state court error deprived him of fundamental rights guaranteed by th e Constitution, laws, or treaties of the United States. Id. at 68. Washington has demonstrated no such deprivation of fundamental rights. Admission of photographs It appears Washington contends the state trial court deprived him of his right to a fair trial by admitting into evidence th ree photographs of the victim. He argues prosecutors failed to disclose the photograp hs before trial, in violation of Brady v. Maryland , 373 U.S. 83 (1963). At an in camera hearing on the matter, Washington’s counsel acknowledged the prosecutors had disclosed the exis tence of the photographs well in advance of trial and had offered to make them av ailable to the defense. Washington does not challenge his counsel’s concess ions and, in any event, the court’s factual determinations are presumed to be correct. See 28 U.S.C. § 2254(e)(1). Washington alternatively suggests admi ssion of the photographs-4-

contravened state discovery rules. As noted, feder al habeas relief does not extend to errors of state law. Estelle , 502 U.S. at 67-68. Exclusion of witness testimony Washington argues the state court erred in excludin g a lay witness from testifying as to the cause of the victim’s injuries . In a federal habeas proceeding, “we do not question a state court’s evidentiary rul ings unless the petitioner can show that, as a whole, the court’s rulings renderedhis trial fundamentally unfair.” Hatch v. Oklahoma , 58 F.3d 1447, 1468 (10th Cir. 1995). “It is the materiality of the excluded evidence to the presentation of the de fense that determines whether a petitioner has been deprived of a fundamentally fair trial.” Maes v. Thomas , 46 F.3d 979, 987 (10th Cir. 1995). According to the proffer of the testimony, the witn ess would have testified the victim’s injuries were not consistent with a butcher knife. Washington maintains this would have undermined the “dangerous weapon” element of the offense. We disagree. The victim testified Washin gton stabbed her twice in the right thigh with a kitchen knife, and that the knif e had a handle three to four inches in length and a blade six to seven inches in length. The victim’s son also testified that he saw Washington stab the victim wi th this same type of knife. The lay witness testified he had not seen a knife. Whe n defense counsel asked if the witness thought the victim’s wounds were caused by a butcher knife, the-5-

prosecution objected and the court sustained the objection, noting the witness was unqualified to answer. We find the court’s ruling to be well reasoned and Washington’s right to a fair trial was not compromi sed. Washington’s request for a certificate of appealabi lity is DENIED and this appeal is DISMISSED. The mandate shall issue forth with. Entered for the Court Mary Beck Briscoe Circuit Judge