* This order and judgment is not binding precedent, e xcept under the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

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

### APR 9 1998 

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

GERARD DALE WHITE,

Petitioner-Appellant,

v. H.N. “SONNY” SCOTT; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 97-6258 (D.C. No. 97-CV-439) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because White filed his habeas petition in the district court on March 27,

1997, we review his petition under 28 U.S.C. § 2254 (d), as amended by the Antiterrorism and Effective Death Penalty Act of 19 96 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24, 1996). See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997). -2- Petitioner Gerard Dale White was convicted by a jury of first degree murder. His conviction was affirmed on direct appe al by the Oklahoma Court of Criminal Appeals in a summary opinion. White th en filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in th e United States District Court for the Western District of Oklahoma alleging sever al grounds for relief. The district court refused to grant the writ and refuse d to issue a certificate of appealability. We exercise jurisdiction under 28 U .S.C. § 1291 and affirm the district court. 1 White initially argues that because the Oklahoma Co urt of Criminal Appeals, in affirming his conviction, issued only asummary opinion he was deprived of due process. There is no merit to this claim. As the magistrate judge explained, there is no constitutional requirement that an appellate court accompany a decision with a written opinion. See Taylor v. McKeithen , 407 U.S. 191, 194 n.4 (1972); see also King v. Champion , 55 F.3d 522, 526 (10th Cir. 1995) (specifically finding no constitutional infirmity in Oklahoma Court of Criminal Appeals’ decision to use summary opinions) . This is especially true in the case of summary affirmances. See Taylor , 407 U.S. at 194 n.4. To the extent-3-

White believes that the Court of Criminal Appeals s hould have made factual findings regarding his case, he misunderstands the role of appellate review. Next, citing 28 U.S.C. § 2254(b)(1)(B)(I) and (ii), White argues that there were no corrective procedures available to him unde r Oklahoma law. These two provisions are exceptions to the general rule requi ring exhaustion of state remedies in § 2254 cases. Not only do the cited pr ovisions have no application to White’s case, he failed to raise the issue in th e district court and we will not address it here. See Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). White’s contention that certain defense witnesses did not testify at his trial because of duress is similarly waived on appe al for failure to present the issue to the district court. White takes exception to the jury instructions, arg uing that he should have received the benefit of a self-defense instruction and that it was error for the court to give a flight instruction. In order to successf ully attack a state court judgment based on an erroneous jury instruction, White must show that the instruction had the effect of rendering his trial fundamentally unf air in a constitutional sense. See Henderson v. Kibbe , 431 U.S. 145, 154 (1977); see also Hunter v. New Mexico , 916 F.2d 595, 598 (10th Cir. 1990). Further, to the extent that the jury instructions reflect matters of state law, the rece nt amendments to § 2254 specify that a habeas petition predicated on legal error may be granted only where the-4-

state adjudication of the merits “resulted in a dec ision that was contrary to, or involved an unreasonable application of, clearly es tablished Federal law, as determined by the Supreme Court of the United State s.” 28 U.S.C. § 2254(d)(1). We first examine White’s contention that he should have received an instruction on self-defense. A defendant is entitl ed to a particular jury instruction only if the evidence warrants such an instruction. See Beck v. Alabama , 447 U.S. 625, 635-36 (1980). The facts of the case and the law of the state must warrant such an instruction. See Holt v. Deere & Co. , 24 F.3d 1289, 1295 (10th Cir. 1994). Our first inquiry is whether the decision n ot to give a self-defense instruction was “contrary to . . . clearly establis hed Federal law, as determined by the Supreme Court of the United States.” 28 U.S .C. § 2254(d)(1). It is clear from our review of the jury instructionconference that the trial judge understood that a defendant is entitled to a particular jury instruction only if the facts adduced at trial warrant the instructi on. See Vol. II, Transcript of Jury Trial at 288-92. Thus, this part of the decis ion was not contrary to Supreme Court-determined federal law. Secondly, we conside r the mixed question of law and fact, i.e., whether the trial judge’s determination not to give a self-defense instruction involved an unreasonable application of federal law to the facts of the case. See § 2254(d)(1).-5- [A]n application of law to facts is unreasonable only when it can be said that reasonable jurists conside ring the question would be of one view that the state co urt ruling was incorrect. In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists. Drinkard v. Johnson , 97 F.3d 751, 769 (5th Cir. 1996) (overruling on o ther grounds recognized byUnited States v. Carter , 117 F.3d 262, 264 (5th Cir. 1997)), cert. denied , 117 S. Ct. 1114 (1997). White’s defense theory was that he and the victim s truggled for the victim’s gun and that the victim accidentally shot himself. The trial judge, in refusing the self-defense instruction, reasoned that, because th ere was no evidence from White that he intended to shoot the victim, the self-defe nse instruction was not warranted. See Vol. II, Transcript of Jury Trial at 288-92. In h is report and recommendation to the district court, the magis trate judge thoroughly and accurately reviewed the evidence adduced at tri al relevant to a theory of self-defense. We agree with the district court that, based on this evidence, the trial court’s refusal to give a self-defense instru ction did not involve an unreasonable application of federal law to the fact s of this case, nor did it result in a trial fundamentally unfair in a constitutional sense. White’s argument that the inclusion of a flight ins truction should serve as the basis for federal habeas relief is also with out merit. As mentioned above,-6-

in order to prevail White has to demonstrate that the giving of this instruction rendered his trial fundamentally unfair in a consti tutional sense. See Henderson , 431 U.S. at 154. Under Oklahoma law, it has long b een appropriate to give a flight instruction when the defendant interposes a plea of self defense or justifiable homicide. See Mitchell v. State , 876 P.2d 682, 684 (Okla. Crim. App. 1993) (citing cases), as corrected by , 887 P.2d 335 (Okla. Crim. App. 1994). Petitioner attempted to establish both of these def enses at trial through the testimony of Detective Fairchild. Although asserti ng that the instruction “diminished” the government’s burden, petitioner do es not allege that that burden was impermissibly shifted or that the instruction m isstated or omitted an element of the offense. Because he offers no factual suppo rt to buttress his contention that the jury was allowed to determine guilt or inn ocence based on improper considerations, petitioner has failed to raise an i ssue of constitutional magnitude justifying habeas relief. Finally, White alleges that the trial court’s decis ion to allow testimony of a prior shooting incident allegedly involving Wh ite was erroneous and supports the grant of the writ. “In order for habeas corpus relief to be granted by a federal court based on a state court evidentiary ruling, th e rulings must render the trial so fundamentally unfair as to constitute a denial o f federal constitutional rights.” Vigil v. Tansy , 917 F.2d 1277, 1280 (10th Cir. 1990) (quotation o mitted). Trial-7-

courts have broad discretion regarding the admissib ility of testimony. See United States v. Davis , 40 F.3d 1069, 1073 (10th Cir. 1994). Our review of the record reveals nothing constitutionally infirm in the tria l court’s decision to admit this evidence. The application for a certificate of appealability is DENIED, and the judgment of the United States District Court for th e Western District of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge