* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

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

### FEB 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHESTER LEE CLARK, Petitioner-Appellant, v. H.N. SCOTT; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 97-6184 (D.C. No. 97-CV-232) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges. **
Petitioner Chester Lee Clark, appearing pro se, see ks to appeal from the district court’s denial of a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied a certificate of appealability. Because Mr. Clark has failed to make a “substantial showing of the denial of a c onstitutional right,” 28 U.S.C.- 2 -

§ 2253(c)(2), we likewise deny a certificate of app ealability and dismiss the appeal. In 1993 Mr. Clark was convicted of using a vehicle to facilitate the intentional discharge of a firearm, shooting with i ntent to kill, assault and battery with a dangerous weapon, and felonious possession o f a firearm. The Oklahoma Court of Criminal Appeals affirmed his convictions. Mr. Clark does not challenge his convictions but requests that his sentences on counts II, III, and IV be run concurrently with his sentence on count I. Sentencing issues are matters for state courts to d etermine by interpreting their own statutes, and ordinarily raise no constitutional claim cognizable in habeas. See Hill v. Page , 454 F.2d 679, 680 (10th Cir. 1971); see also Haynes v. Butler , 825 F.2d 921, 923-24 (5th Cir. 1987), cert. denie d , 484 U.S. 1014 (1988). Nevertheless, because we construe petitioner’s pro se brief liberally, see United States v. Hardwell , 88 F.3d 897, 897 (10th Cir. 1996), we address the issues Mr. Clark raises. He claims the trial court erred (1) in admitting evidence of other crimes by allowing testimony that Mr. Clark operate d a drug house, (2) in merely sustaining an objection to, and admonishing the jury to disregard, a police officer’s testimony that he did not believe petitio ner was telling the truth, (3) in admitting photographs without proper foundation, (4 ) in not allowing defense counsel to impeach a witness with prior inconsistent statements, (5) in allowing- 3 -

the prosecution to refer to the charged incident as a drive-by shooting, and (6) in splitting petitioner’s two-count prior conviction t o use as both a predicate felony for the weapon possession charge and as the basis f or enhancing his sentence. “State court rulings on the admissibility of eviden ce may not be questioned in federal habeas proceedings unless they render th e trial so fundamentally unfair as to constitute a denial of federal constitutional rights.” Brinlee v. Crisp , 608 F.2d 839, 850 (10th Cir. 1979), cert. denied , 444 U.S. 1047 (1980); see Martin v. Kaiser , 907 F.2d 931, 934 (10th Cir. 1990) . None of Mr. Clark’s evidentiary challenges, in the context of the proceedings as a whole, rises to the level of fundamental unfairness or calls into question const itutional due process. With respect to Mr. Clark’s sixth assignment of err or, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missour i v. Hunter , 459 U.S. 359, 366 (1983). We look to Oklahoma’s interpretation of it s own law in determining whether double jeopardy has been violated. See Mansfield v. Champion , 992 F.2d 1098, 1100 (10th Cir. 1993). In Mr. Clark’s d irect appeal the Oklahoma Court of Criminal Appeals ruled that Oklahoma law w as not violated by using one count of his prior felony conviction as an element of the present count IV, and the other to enhance his punishment for counts I-III, where the sentence on count IV was not enhanced. See R. doc. 7, exh. A, at A3-4. We find no constituti onal- 4 -

error. Mr. Clark alludes to violations of Okla. Stat. Ann. tit. 21, § 11(A) (West Supp. 1998) and the Double Jeopardy Clause with res pect to his four-count conviction arising from what he describes as a sing le criminal event. Mr. Clark failed to raise this issue in his direct appeal. S ee R. doc. 7, exh. A. While Mr. Clark has failed to exhaust on this issue, it is cl ear that under Oklahoma law he has waived any claim of error which he could have r aised on direct appeal but did not. See Okla. Stat. Ann. tit. 22, § 1086 (West 1986); Paxt on v. State , 910 P.2d 1059, 1061 (Okla. Crim. App. 1996). We may therefo re consider the issue. See Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991), Demarest v. Price , 130 F.3d 922, 939 (10th Cir. 1997). This waiver results in a default pursuant to an independent and adequate state procedural rule. Se eSteele v. Young , 11 F.3d 1518, 1521 (10th Cir. 1993). Habeas review is thus prohibited in the absence of a showing of cause for the default and actual prejudi ce resulting from it, or a showing that a fundamental miscarriage of justice w ould result from the denial of relief. See Coleman , 501 U.S. at 750; Steele , 11 F.3d at 1521. Mr. Clark does not suggest cause for or prejudice f rom his procedural default. Nor does he claim factual innocence; cons equently no fundamental miscarriage of justice will result from the denial of relief. See Selsor v. Kaiser , 22 F.3d 1029, 1034 (10th Cir. 1994).- 5 -

APPEAL DISMISSED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge