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 CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Isaiah Hamburger seeks a certificate of appealability (“COA”) to challenge the 

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and 

dismiss the appeal. 

 Hamburger was convicted in Oklahoma state court of lewd acts with a child 

under twelve. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his 

conviction on direct appeal. Hamburger filed a § 2254 petition in the district court 

raising several grounds for relief. The district court denied the petition and declined 

to grant a COA. Hamburger now seeks a COA from this court.

 *

 This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral 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 Court
2 

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 denial of a constitutional right.” § 2253(c)(2). To satisfy 

this standard, Hamburger must show “that reasonable jurists could debate whether 

(or, for that matter, agree that) the petition should have been 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) (quotations omitted). 

To obtain relief under § 2254, a petitioner must show that state court adjudication 

either “resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented” or was “contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the 

Supreme Court of the United States.” § 2254(d)(1), (2). 

 Hamburger argues that the trial court improperly admitted a recording of a 

forensic interview of the victim. 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 admission, such a claim is not 

cognizable under § 2254. See Estelle v. McGuire, 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 error 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 several factors relevant in determining 

whether a child victim’s interview is sufficiently reliable. Idaho v. Wright, 497 U.S. 

805, 821-22 (1990) (identifying “spontaneity and consistent repetition,” “mental state 

of the declarant,” “use of terminology unexpected of a child of similar age,” and 

“lack of motive to fabricate”) abrogated on other grounds by Crawford v. 

Washington, 541 U.S. 36, 68-69 (2004). The OCCA reasonably weighed these 

factors in concluding the interview was admissible. Hamburger complains that the 

interviewer did not specifically discuss the difference between truth and lies with the 

victim. The interviewer testified that although some jurisdictions prefer such a 

discussion, it is not required by protocol. Hamburger does not direct us to any 

clearly established federal law 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 afforded his right to confront 

the victim and cross-examine her. See Delaware v. Van Arsdall, 475 U.S. 673, 678-

79 (1986). The victim testified at trial in a manner generally consistent with the 

interview. Defense counsel cross-examined both the victim and the interviewer, 

identifying several minor inconsistencies in the victim’s accounts. Hamburger 

contends that the victim was not truly available for cross-examination because she 

should have been deemed incompetent to testify. But he does not identify any 

authority for the proposition that the Confrontation Clause is offended when a 

witness is reasonably determined competent to testify under state law and is actually 
4 

subject to cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) 

(“[T]he Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever 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 “charges brought under a more general statute thwart the 

legislative intent.” State v. Franks, 140 P.3d 557, 559 (Okla. Crim. App. 2006) 

(quotation omitted). As noted above, however, § 2254 relief is not available for 

violations of state law. McGuire, 502 U.S. at 67. Under federal law, “so long as the 

prosecutor has probable cause to believe that the accused committed an offense 

defined by statute, the decision whether or not to prosecute, and what charge to file 

or bring before a grand jury, generally 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 district court’s denial of 
5 

habeas relief, we DENY a COA and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge