* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### DEC 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EUGENE KIRK,

Petitioner-Appellant, No. 04-6200

v. (W. District of Okla.) REGINALD HINES, Warden,

Respondent-Appellee. (D.C. No. CV-03-997-M)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Petitioner-Appellant Eugene Kirk, a state prisoner appearing pro se, filed a petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 (2000). Upon the magistrate judge’s recomme ndation, the district court denied Kirk’s writ of habeas corpus. The district court also denied Kirk a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (2000) (a-2-

petitioner may not appeal the denial of habeas corp us relief unless he first obtains a COA). Kirk now seeks to appeal the district court’s ruling on the same grounds that were rejected by the district court. Because Kirk has not made a substantial showing of the denial of a constitutional right, we deny his COA and dismiss the appeal. Background Kirk was tried and convicted by a jury in Oklahoma state court on three counts: Murder in the First Degree (Count I); Domes tic Abuse After a Former Conviction of Domestic Abuse (Count II); and Assaul t with a Dangerous Weapon (Count III). Kirk received life without parole forCount I, and forty years in prison for each of the other two counts; his senten ces were to run consecutively. Kirk then filed a direct appeal to the Oklahoma Cou rt of Criminal Appeals (OCCA), citing seven trial errors. The OCCA affirm ed Williams’s conviction and sentences on Counts I and III, but reversed his con viction for domestic abuse, thus reducing Kirk’s sentence by forty years. The O CCA also found the trial court erred when it failed to give a jury instruction reg arding impeachment by prior bad acts, but found that the error was harmless beyond a reasonable doubt. Thereafter, Kirk filed the instant § 2254 petition, citing six grounds for relief, all of which were part of his original appe al to and rejected by the OCCA. First, Kirk asserted that the evidence was insuffic ient to convict him of Count I.-3-

Second, Kirk argued prosecutorial misconduct during closing arguments wherein the prosecutor’s alleged vouching for a witness vio lated his Sixth, Eighth, and Fourteenth Amendment rights. Third, Kirk claimed t hat the trial court erroneously admitted “other crimes” evidence in vio lation of his Sixth, Eighth, and Fourteenth Amendment rights. Fourth, Kirk argu ed that the court’s failure to grant his jury instruction regarding impeachment byprior bad acts violated his due process rights. Fifth, Kirk asserted that the court’s jury instructions placed too much emphasis on his prior conviction. Finally , Kirk claimed that the cumulative effect of the court’s errors violated his right to a fair trial. Analysis This court may only issue a COA and entertain Kirk’ s appeal if he “has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2) (2000). See also Slack v. McDaniel , 529 U.S. 473, 484 (2000); United States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). To make th e necessary substantial showing, “a petitioner must s how that reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotations omitted). Our role is not to engage in a “full consideration of the factual or legal bases adduced in support of the claims,” but-4-

rather to conduct “an overview of the claims in the habeas petition and a general assessment of their merits.” Id . Additionally, in cases such as this where the petitioner’s federal habeas claims were adjudicated on the merits in state court, Congress has instructed that we may grant habeas re lief only where the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law” or was “based on an unreas onable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (2000). We have recently held that this standard of deferential treatment of state court decisions must be incorpor ated into our consideration of a habeas petitioner’s request for a COA. See Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). In his direct appeal, the OCCA found that the jury properly convicted Kirk of First Degree Murder and Assault with a Dangerous Weapon, but found that the jury improperly convicted him of Domestic Abuse Aft er a Former Conviction of Domestic Abuse. After conducting the required overview of Kirk’s claims, and having considered the deferential treatment accorde d to state court decisions under § 2254(d), we agree with the district court t hat Kirk has failed to make a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c)(2) (2000).-5-

The magistrate judge’s thorough examination of all six of Kirk’s claims, with which we agree and adopt by reference, demonst rates that the district court’s denial of Kirk’s habeas petition was not a decision that reasonable jurists could debate. First, it is clear, particularly in light of the li mited scope of our review under § 2254, that the evidence presented at trial was such that a “rational trier of fact could have found the elements of [First Degree Murder] beyond a reasonable doubt.” Romano v. Gibson , 239 F.3d 1156, 1164 (10th Cir. 2001) (internal quotations omitted). Second, the OCCA did not err when it found that the prosecution’s emphasis on the consistency of the wi tnesses’ testimony did not constitute vouching for those witnesses. Third, no actual “other crimes” evidence was admitted because the trial court sustained an o bjection to a question regarding Kirk’s prior incidents of domestic abuse before the witness could answer the question. What is more, the court instr ucted the jury to ignore the question and any implications that could possibly b e drawn from it. Fourth, the OCCA’s finding that the trial court committed harml ess error by not providing the jury with an instruction on impeachment by prior in consistent statements was correct because it applied and analyzed the issue u sing the proper standard to determine harmlessness. Fifth, the OCCA properly r ejected Kirk’s argument that two jury instructions concerning impeachment by former conviction unduly-6-

emphasized his prior conviction. Kirk did in fact have a prior conviction and the instruction was proper. Finally, the OCCA properlyevaluated the impact of the trial court’s errors, i.e., not providing a jury in struction on impeachment by prior bad acts and improperly convicting Kirk on Count II , because there was no cumulative effect of the errors since there was onl y one harmless error. Accordingly, we find that no reasonable jurist coul d disagree with the conclusions made by the district court in its denia l of Kirk’s petition for relief and COA. Therefore, we DENY the request for a COA and DISMISS the case. Entered for the Court Timothy M. Tymkovich Circuit Judge