* This order and judgment is not binding precedent, e xcept under the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

### FEB 7 1997 

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

DANNY E. LOOK,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 96-6045 (D.C. No. CIV-95-274-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA, EBEL, 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Danny Eugene Look appeals the district c ourt’s denial of his petition for a writ of habeas corpus, filed pursuan t to 28 U.S.C. § 2254. Because the exclusion of certain evidence did not violate p etitioner’s constitutional rights and because the evidence is sufficient to support h is conviction, we affirm. Petitioner was convicted of embezzlement by a trust ee after former conviction of two or more felonies, Okla. Stat. tit . 21, § 1454 (1981), for which he received a forty-five year sentence. He was acq uitted, however, of a second charge of assault and battery with a dangerous weap on with intent to kill. At trial, the victim of both crimes testified that herson, who was not a party to the proceedings, was a nonviolent, calm person without violent tendencies. Petitioner was not permitted to impeach this testimony with ev idence of her son’s former homicide conviction. Petitioner was also not permi tted to impeach the victim’s son’s testimony with the former conviction. Based primarily on the victim’s testimony, petitioner was convicted of embezzling approximately $50,000 with which the victim had entrusted him for investment. On appeal, petitioner argued that exclusion of the impeachment evidence was an error which resulted in a miscarriage of jus tice, and that the evidence was not sufficient to support his conviction. The Okla homa Court of Criminal Appeals summarily affirmed petitioner’s conviction. Petitioner then filed this petition for a writ of habeas corpus, alleging that(1) exclusion of the-3-

impeachment evidence violated due process and his r ights under the Fifth and Sixth Amendments; and (2) the evidence was insuffic ient to support his conviction. In a well-written report and recommend ation, the magistrate judge to whom the matter was referred found that exclusion o f the impeachment evidence did not render the trial so fundamentally unfair as to constitute a denial of due process, and that even if exclusion of the evidence was erroneous, there was no showing that had the evidence been admitted, the ou tcome of the trial would have been different. R. I, doc. 11 at 3. The magistrat e judge also concluded that the evidence was sufficient to support petitioner’s con viction. Id. at 4-6. Upon de novo review, the district court adopted the repo rt and recommendation, and this appeal followed. We review the district court's denial of petitioner 's habeas corpus petition de novo. Bowser v. Boggs , 20 F.3d 1060, 1062 (10th Cir. 1994). While a due process challenge to a state evidentiary ruling is reviewed only for fundamental unfairness, an alleged violation of the Sixth Amend ment right to confrontation is reviewed de novo. Matthews v. Price , 83 F.3d 328, 331, 332 (10th Cir. 1996); see also Donnelly v. DeChristoforo , 416 U.S. 637, 642 (1974) (discussing narrow review of due process claims). After reviewing the record, we conclude that petiti oner was deprived of neither due process nor his right to confrontation. Although petitioner now-4-

argues that the excluded evidence was admissible to impeach the victim’s credibility, his offer of proof at trial sought sub mission only to show that the crime for which the victim’s son had been convicted was similar to the attempted strangulation with which petitioner was charged. T r. II at 227-28. As petitioner was acquitted on this second charge, he could not h ave been prejudiced by the court’s exclusion of the homicide conviction. More over, petitioner was given the opportunity to cross-examine the victim on her son’ s propensity for violence, and was permitted to impeach her testimony by showing that he was involved in a knife altercation and that he had previously attack ed the victim. Id. at 108-09, 121-24, R. II, doc. 2, attached transcript excerpt at 186. The victim’s son and her granddaughter’s former boyfriend also testified to these events. Tr. III at 78-79, 112-114. Evidence of the victim’s son’s homicide c onviction, while marginally relevant to impeach the victim’s testimony regardin g her son’s nonviolent nature, involved a collateral issue and was cumulative. Se e, e.g. , Maes v. Thomas , 46 F.3d 979, 988 (10th Cir. 1995) (holding exclusion o f evidence regarding witness’s probation status not fundamentally unfair when peti tioner presented other evidence of his violent past). As for petitioner’s claim that he was prejudiced byhis inability to impeach the victim’s son with the former homicide convictio n, petitioner has alleged only violations of state law. Habeas relief is not avai lable for state law errors. See-5-

Matthews , 83 F.3d at 331. Even assuming that petitioner al leged a constitutional violation as well, we see no fundamental unfairness or evidence that the exclusion had a substantial effect on the jury’s verdict, in light of the limited nature of the victim’s son’s testimony regarding the embezzlementcharge. We also conclude that the evidence was sufficient to support petitioner’s conviction. We review petitioner’s sufficiency of the evidence claim de novo to determine, after considering the trial evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found each separate element of the crime charged was proved beyond a re asonable doubt. Maes , 46 F.3d at 988; see also Jackson v. Virginia , 443 U.S. 307, 319 (1979). Upon reviewing the record, we hold that a rational trierof fact could find each element of the embezzlement charge proved beyond a reasonab le doubt. We hereby grant petitioner a certificate of appeala bility. The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge