UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JIMMY FOSTER, 

 Petitioner - Appellant, 

v. 

ANITA TRAMMELL, 

 Respondent - Appellee. 

No. 14-5119 

(D.C. No. 4:11-CV-00503-CVE-FHM) 

(N.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges. 

 

 Jimmy Foster seeks a certificate of appealability (“COA”) to appeal from the 

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

dismiss this proceeding. 

I 

 Foster was accused of killing Tyri Rodgers, who died after being shot at the 

Apache Manor Apartments in Tulsa, Oklahoma, on July 9, 2006. At trial, Foster 

admitted shooting Rodgers. He testified that Rodgers was trying to shoot him, and so 

he acted in self-defense. The physical evidence included three .40 caliber casings 

 *

 This order is not binding precedent, except under the doctrines of law of the 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

June 5, 2015

Elisabeth A. Shumaker 

Clerk of Court

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from Foster’s gun and a 9 mm casing from the area where Rodgers had been 

standing. No 9 mm handgun was found, and other witnesses testified that Rodgers 

had not been armed. 

A jury found Foster guilty after being instructed on the elements of first degree 

malice aforethought murder and self-defense. In his direct appeal, Foster challenged 

the sufficiency of the evidence to support the conviction and to overcome his 

assertion of self-defense. The Oklahoma Court of Criminal Appeals (“OCCA”) held 

that, viewing the evidence in the light most favorable to the State, it was sufficient to 

prove beyond a reasonable doubt that Foster was guilty of first degree murder 

because he admitted the elements of the crime and the jury could have rationally 

found beyond a reasonable doubt that he did not act in self-defense. Accordingly, the 

OCCA affirmed his conviction and sentence of life imprisonment. 

Foster then filed his § 2254 petition, again challenging the sufficiency of the 

evidence. He conceded that the OCCA identified the correct legal principle, but he 

argued that it applied that principle unreasonably to the facts of his case because the 

physical evidence (primarily the 9 mm casing) required the jury to credit Foster’s 

testimony. The district court disagreed, finding that the evidence, when viewed in 

the light most favorable to the prosecution, was sufficient for a rational trier of fact to 

have found the essential elements of the crime beyond a reasonable doubt. It denied 

relief and denied a COA. 

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II 

 To appeal, Foster must obtain a COA, which requires him to make “a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). “Where a 

district court has rejected the constitutional claims on the merits, the showing 

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that 

reasonable jurists would find the district court’s assessment of the constitutional 

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Because the OCCA considered Foster’s claims on the merits, he is not entitled 

to habeas relief unless the OCCA’s decision was “contrary to, or involved an 

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

Supreme Court of the United States,” or was “based on an unreasonable 

determination of the facts in the light of the evidence presented in the State court 

proceeding.” § 2254(d)(1), (2). “Thus, the decision whether to grant [the] COA 

request rests on whether reasonable jurists would find the district court’s assessment 

of the constitutional claims debatable or wrong in light of the deference owed to the 

OCCA’s adjudication of [the] claims.” Howell v. Trammell, 728 F.3d 1202, 1225 

(10th Cir. 2013) (quotation omitted). 

When a habeas petitioner challenges the sufficiency of the evidence, “the 

relevant question is whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 

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(1979). Under the applicable provision of Oklahoma law, “[a] person commits 

murder in the first degree when that person unlawfully and with malice aforethought 

causes the death of another human being.” Okla. Stat. tit. 21, § 701.7(A). The only 

element controverted by Foster is whether the shooting was unlawful. Because he 

presented evidence that he acted in self-defense, it was the State’s burden to prove 

beyond a reasonable doubt that he was not acting in self-defense. Dawkins v. State, 

252 P.3d 214, 220 (Okla. Crim. App. 2011). 

Foster argues that the presence of a 9 mm casing, in good condition, where 

Rodgers had been standing, compels a finding that he acted in self-defense. In his 

view, any other conclusion is unreasonable. We disagree. Several witnesses testified 

that Rodgers did not have a gun or that he did not shoot at Foster. There also was 

testimony that the Apache Manor apartment complex was the site of frequent “shots 

fired” and “shots heard” police calls. The jury could have reasonably credited this 

testimony, decided that the 9 mm casing was not related to this shooting, and rejected 

Foster’s theory that Rodgers must have had a 9 mm handgun, which a bystander then 

removed from the scene. See Jackson, 443 U.S. at 319 (noting that it is “the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh 

the evidence, and to draw reasonable inferences from basic facts to ultimate facts”). 

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III 

 For the foregoing reasons, we DENY a COA and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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