UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ISAIAH C. HAMBURGER, Petitioner - Appellant,

v. JOE M. ALLBAUGH, Director, Respondent - Appellee. No. 16-6281 (D.C. No. 5:13- CV-00921-F) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Isaiah Hamburger seeks a cer tificate of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 habeas pe tition. We deny a COA and dismiss the appeal. Hamburger was convicted in Oklahoma st ate court of lewd acts with a child under twelve. The Oklahoma Court of Cr iminal Appeals (“OCCA”) affirmed his conviction on direct appeal. Hamburger fi led a § 2254 petition in the district court raising several grounds for relief. The dist rict court denied the petition and declined to grant a COA. Hamburger now seeks a COA from this court.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, 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 

### February 14, 2017
Elisabeth A. Shumaker Clerk of Court2 A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a substantial showing of the deni al of a constitutional right.” § 2253(c)(2). To satisfy this standard, Hamburger mu st show “that reasonable ju rists could debate whether (or, for that matter, agree that) the petition should have b een resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quota tions omitted). To obtain relief under § 2254, a petitioner mu st show that stat e court adjudication either “resulted in a decision that was ba sed on an unreasonable determination of the facts in light of th e evidence presented” or was “contrary to, or involved an unreasonable application of, cl early established Federal la w, as determined by the Supreme Court of the United Stat es.” § 2254(d)(1), (2). Hamburger argues that th e trial court improperly ad mitted a recording of a forensic interview of the vi ctim. To the extent that this argument is based on an alleged violation of Okla. Stat. tit. 12, § 2803.1, which requires a finding of reliability of child victim statements prior to admi ssion, such a claim is not cognizable under § 2254. See Estelle v. Mc Guire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”) . Instead, we look only to whether a claimed evidentiary e rror was “so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.” Revilla v. Gibson, 283 F. 3d 1203, 1212 (10th Cir. 2002) (quotation and alteration omitted).3 The Supreme Court has identified severa l factors relevant in determining whether a child victim’s inte rview is sufficiently reliable . Idaho v. Wright, 497 U.S. 805, 821-22 (1990) (identifyi ng “spontaneity and consistent repetition,” “mental state of the declarant,” “use of terminology une xpected of a child of similar age,” and “lack of motive to fabri cate”) abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 68-69 (2004). The OCCA reasonably weighed these factors in concluding the in terview was admissible. Ha mburger complains that the interviewer did not specifically discuss the difference betw een truth and lies with the victim. The interviewer tes tified that although some ju risdictions prefer such a discussion, it is not require d by protocol. Hamburger doe s not direct us to any clearly established federal la w indicating that this factor alone renders a statement unreliable. Accordingly, his claim fails. Hamburger also argues that admission of the interview violated his rights under the Confrontation Clause . But Hamburger was afford ed his right to confront the victim and cross-examine her. See De laware v. Van Arsda ll, 475 U.S. 673, 678- 79 (1986). The victim testified at trial in a manner generally consistent with the interview. Defense counse l cross-examined both the vi ctim and the interviewer, identifying several minor inc onsistencies in the victim ’s accounts. Hamburger contends that the victim was not truly av ailable for cross-exam ination because she should have been deemed incompetent to testify. But he does not identify any authority for the proposition that the C onfrontation Clause is offended when a witness is reasonably determin ed competent to testify unde r state law and is actually4 subject to cross-examination. See Delaware v. Fenstere r, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause guarantee s an opportunity fo r effective crossexamination, not cross-examination that is effective in what ever way, and to whatever extent, the defense might wish.”). Lastly, Hamburger contends that he should have been charged with the lesser offense of oral sodomy. Under Oklahoma law, a prosecutor must charge a more specific crime only if “charge s brought under a more ge neral statute thwart the legislative intent.” Stat e v. Franks, 140 P.3d 557, 559 (Okla. Crim. App. 2006) (quotation omitted). As noted above, how ever, § 2254 relief is not available for violations of state law. Mc Guire, 502 U.S. at 67. Under federal law, “so long as the prosecutor has probable caus e to believe that the accu sed committed an offense defined by statute, the decision whether or not to prosecu te, and what charge to file or bring before a grand jury, generall y rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 ( 1978); see also United States v. Parsons, 967 F.2d 452, 456 (10th Cir. 1992) (“Prosecutors are not required to prosecute under another statute perhaps covering the same wrongful acts merely because the other statute imposes a lesser penalty.”). Because reasonable jurists could not debate the distri ct court’s denial of5 habeas relief, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge