* This order and judgment is not binding precedent, e xcept under the

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

** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by design ation. 

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

### AUG 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DENNIS ALAN SHACKELFORD,

Petitioner-Appellant,

v. RON CHAMPION, Warden; STATE OF OKLAHOMA; JAMES L. SAFFLE, Respondents-Appellees. No. 97-6334 (D.C. No. 97-CV-663) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the appellant’s request for a decision on the briefs without1 The habeas petition was filed after the effective d ate of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). H ence, a certificate of appealability is required, which means we must dete rmine that petitioner “has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). -2- oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Petitioner-appellant Dennis Alan Shackelford seeks review of the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He also seeks a certificate of appealability as required under 28 U.S.C. § 2253(c)(1). 1 Mr. Shackelford was convicted of first degree murde r in the shooting death of Thomas “Tyke” Kelly. Petitioner maintained thatMr. Kelly attacked petitioner and that the killing was unintentional and in defen se of petitioner and his wife. The background facts do not appear to be in dispute

. Briefly, Mr. and Mrs. Shackelford went to Thomas Ke lly’s trailer home to discuss a debt allegedly owed Mrs. Shackelford for damage Mr. Kelly had caused to her car earlier in the week. Mr. Shackelford ha d a gun in his back pocket. As they approached the trailer, Mrs. Shackelford knock ed on the door, Mr. Kelly appeared, and he and Mrs. Shackelford had a discuss ion. Mr. Kelly then stated he would continue the conversation only if Mrs. Shacke lford came in the trailer alone. Mr. Shackelford asked her not to, but told Mr. Kelly he wanted things to remain peaceful.-3-

At that point, according to Mr. Shackelford, Mr. Ke lly grabbed him by the throat and attempted to throw him over the porch ra iling. Mr. Shackelford instinctively grabbed the gun and shot Mr. Kelly, w ho fell backward. Unsure if he had actually hit Mr. Kelly, Mr. Shackelford move d to position himself between Mrs. Shackelford and Mr. Kelly. Mr. Kelly raised up as though attempting to stand back up, and Mr. Shackelford fired another sh ot. The evidence at trial showed that Mr. Kelly died of three gunshot wounds, two to the chest and one to the back of the shoulde r. The only eyewitness (other than Mr. Shackelford) was Mrs. Shackelford, who haddied in a car accident prior to the trial. Mr. Shackelford testified in his own behalf. The s tate presented the testimony of witnesses in the vicinity, who testifi ed as to what they heard before and after the shots were fired. None heard any scu ffle or argument between the parties prior to the firing of the shots. In addit ion, the witnesses testified that the shots happened within seconds of the knock on Mr. K elly’s door. On direct appeal and before the federal district co urt, Mr. Shackelford raised the following issues: (1) the trial court erred in (i) allowing jurors to take notes and to ask questions of witnesses during his trial, (ii) admitting into evidence a videotape of an out-of-court experiment conducted b y the Oklahoma State Bureau of Investigation, (iii) submitting certain instructions to the jury and failing to submit certain others and ( iv) restricting his cross-examination of state witness, Gary Eischeid; (2) prosecutorial-4-

misconduct deprived him of a fair trial; and (3) th e evidence presented at trial was insufficient to support his conviction. Magistrate Judge’s Report and Recommendation, at 1- 2. On appeal to this court, petitioner raises only the following issues: (1) the state trial court erred in allowing the jury to askquestions of witnesses, thereby depriving petitioner of a fair and impartial jury; (2) petitioner was denied his due process rights to a fair trial because of prosecuto rial misconduct; (3) certain jury instructions violated petitioner’s Fourteenth Amendment due process rights, and (4) petitioner was denied his Sixth and Fourteenth amendment rights to confront adverse witnesses by the state trial court’s refusa l to allow cross-examination of a certain witness.

Juror Questions The magistrate judge determined that the claims rai sed in ground one were issues of state law related to the manner in which the trial court conducts a criminal trial. He further noted that “Petitioner appears to acknowledge that, as a matter of state law, the [state trial court] has di scretion to permit the jury both to take notes and to ask questions of witnesses” (citations omitted), and that petitioner “clearly advocates a change in that law. ” Report and Recommendation,
at 4-5.-5-

As to permitting the jurors to ask questions of witnesses, Mr. Shackelford ignores the fact that Oklahoma practice allows for this. See Cohee v. State , 942 P.2d 211, 214 (Okla. Crim. App. 1997) (reciting gui delines governing juries in criminal trials which allow the jury to question witnesses); Freeman v. State , 876 P.2d 283, 288-89 (Okla. Crim. App. 1994). Moreover , he does not claim that any particular questions asked were prejudicial or fund amentally unfair. His theory that the procedure may cause jurors to be frustrate d or resentful if individual questions were not asked, or that one or two jurors might dominate the questioning, is pure speculation. The trial court was careful to allow only written questions, which were then screened in chambers bef ore either being asked or disallowed. Counsel for Mr. Shackelford conceded i t was a matter of the court’s discretion whether or not to allow juror questionin g. We find no constitutional infirmity which would warrant habeas corpus relief.

Prosecutorial Misconduct Mr. Shackelford next complains of prosecutorial mis conduct on several occasions: A. Opening statement Mr. Shackelford alleges the prosecutor erred in his opening statement by implying that Mrs. Shackelford’s testimony would have been substantially different from (and inconsistent with) that of Mr. Shackelford. Specifically, he-6-

contends that the prosecutor’s remark that “Jerrie Shackelford who was also at the doorway of that trailer park is not here and will n ot be here to give you her version of what happened in the doorway of that tra iler,” amounts to misleading the jury as to “what [Mrs.] Shackelford’s testimonywould have been had she lived to testify.” Appellant’s Br. at 29. We fail to see how the statement in any way indicat es what her testimony might have been. The jury was advised that Mrs. Shackel ford’s death was in no way related to her husband’s trial. Even if the re mark, which does not implicate a specific constitutional right, was improper, it doe s not rise to the level of unfairness as to make the conviction a denial of due process. See Moore v. Reynolds , No. 97-6065, 1998 WL 387452 at *27 (10th Cir. Jul y 13, 1998) (“Prosecutorial misconduct does not warrant federal habeas relief unless the conduct complained of ‘so infected the trial with u nfairness as to make the resulting conviction a denial of due process.’”) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974)). Because the prosecuto r’s remark did not infringe on any specific constitutional right, the claim of prosecutorial misconduct is reviewed in a habeas setting only for fundamental unfairness. See Mahorney v. Wallman , 917 F.2d 469, 472 (10th Cir. 1990) (citing Coleman v. Saffle , 869 F.2d 1377, 1395 (10th Cir. 1989)). We conclu de there was none.-7-

B. Improper witness questioning Mr. Shackelford claims the prosecutor’s cross-exami nation of defense witness George Burns, a former Oklahoma City police officer, was improper because the witness was asked if he had been suspen ded from the police department after having been arrested. Petitioner’ s objection to the question was sustained, and no further questions on the subject were asked. Mr. Shackelford also complains that the prosecutor’ s cross-examination of him regarding karate lessons, a punching bag and we ight equipment improperly implied that petitioner could have fended off Mr. K elly’s attack without using the gun. The magistrate judge determined that the reco rd reflected that petitioner’s trial counsel then established that petitioner had taken karate lessons for a short period and had not practiced it in many years. It was also established that the purpose of the punching bag and weight equipment wa s overall fitness. Mr. Shackelford also argues that he was improperly questioned regarding martial arts tatoos, which he asserts portrayed himas “a violent tattooed thug.” He concedes, however, that trial counsel’s objectio n to this question was sustained, and he does not dispute the magistrate j udge’s finding that the record shows that the jury was immediately admonished to d isregard the question. The prosecutor further allegedly violated the rulin g on an earlier motion in limine by asking questions about Mr. Shackelford’s emotional problems and-8-

threats of suicide. The trial court overruled the objection with respect to the prior suicide threats, but sustained the objection to que stions about other emotional problems. Again petitioner has failed to demonstr ate any errors rising to the level of constitutional violations. C. Misconduct in closing arguments Here, Mr. Shackelford claims the prosecutor misstat ed Oklahoma law in stating that a lesser included instruction on mansl aughter is automatic when selfdefense is raised as a defense to first degree murd er. He also claims the prosecutor erroneously encouraged the jury to sympathize with the victim and improperly “made a naked appeal to societal alarm b y suggesting to the jury that if [Mr. Shackelford] was not sentenced to life with out parole, he would again have an opportunity to commit acts of violence.” Appellant’s Br. at 38. As with his arguments on the alleged improper remarks during the prosecutor’s opening statement, petitioner recogniz es the standard of review on habeas corpus, i.e., that prosecutorial comments vi olate due process only when so egregious in the context of the entire trial as to render the trial fundamentally unfair. See Donnelly , 416 U.S. at 642-48. At most the prosecutorial errors complained of might constitute violations of state law. See, e.g. , Tolber v. State , 688 P.2d 350, 354 (Okla. Crim. App. 1984) (error to persuade jury away from judge’s instruction on manslaughter); Cummings v. State , 578 P.2d 377, 380-9-

(Okla. Crim. App. 1978) (character impeachment improper); President v. State , 602 P.2d 222, 226 (Okla. Crim. App. 1979) (improperprosecutorial argument warranted modified sentence); Robinson v. State , 574 P.2d 1069, 1072 (Okla. Crim. App. 1978) (same). However, “[r]emarks that would cause us to reverse in a direct appeal of a federal conviction are not nec essarily grounds for reversal when spoken in state courts.” Coleman v. Brown , 802 F.2d 1227, 1237 (10th Cir. 1986). In a federal habeas action reviewing a stat e prosecutor’s conduct , our review is not a broad exercise of supervisory power , but rather is narrowly confined to violations of due process. See Brecheen v. Reynolds , 41 F.3d 1343, 1355 (10th Cir. 1994). The errors here alleged, as the magistrate judge correctly found, do not rise to the level of federal constitutional violations.

Jury Instructions As his third claim of error, Mr. Shackelford conten ds that certain jury instructions violated his Fourteenth Amendment due process rights. Specifically, he claims the trial court erred in giving the follo wing instruction on intent: The “intent” with which an act is done is the menta l state of mind of the accused and, therefore, direct and positive pro of of intent is not necessary. If you find that an act was done, then the intent with which it was done is to be gathered and determined by you from all the facts and circumstances as the same have been e stablished and shown by all the evidence presented during the tria l of this case. Appellant’s App. at 73.-10-

In reviewing instructions for federal constitutiona l error: The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attac k on the constitutional validity of a state court’s judgment is even greate r than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is unde sirable, erroneous, or even universally condemned. (quotations, citatio n, and footnote omitted). Henderson v. Kibbe , 431 U.S. 145, 154 (1977). Mr. Shackelford contends that this instruction unco nstitutionally shifted “the burden of proof to the accused to prove a lackof intent in violation of the Fourteenth Amendment’s due process clause” and in v iolation of the Supreme Court’s dictates in Yates v. Aiken , 484 U.S. 211 (1988); Francis v. Franklin , 471 U.S. 307 (1985); Sandstrom v. Montana , 442 U.S. 510 (1979); and Mullaney v. Wilbur , 421 U.S. 684 (1975). We disagree. The instruction suffers from no infirmity of the “b urden shifting” nature found unconstitutional by the Supreme Court in its cases reviewing presumptions because the instruction involves no presumptions wh atever. Instead, the instruction merely recites that intent is a mental state of mind which the jury is to determine from all the facts and circumstances show n by all the evidence presented. Moreover, we have considered a nearly i dentical instruction and found no constitutional violation, and specifically that it “does not establish a-11-

presumption or shift the burden of proof.” See Fisher v. Champion , No. 91-5014, 1991 WL 166402, at **3-4 and n.2 (10th Cir. Aug. 28 , 1991) (unpublished order and judgment). He next claims that the trial court’s instructions on heat of passion manslaughter “failed to properly allocate the burde n of proof to the prosecution,” contrary to the dictates of Mullaney , 421 U.S. at 704 (“Due Process Clause requires the prosecution to prove beyond a reasonab le doubt the absence of the heat of passion on sudden provocation when the issu e is properly presented in a homicide case.”). Appellant’s Br. at 43. Again, w e disagree. The very language of the instruction requires that a defendant may no t be convicted of first degree manslaughter unless the state proves beyond a reaso nable doubt that “when performing the conduct which caused the death, defe ndant was in a heat of passion.” Appellant’s App. at 76. We find no fede ral constitutional infirmity in this instruction. Petitioner also argues that the trial court violate d this court’s requirements set forth in United States v. Lofton , 776 F.2d 918, 920-21 (10th Cir. 1985) (in federal murder prosecution under 18 U.S.C. § 1111(a ) where heat of passion is raised as defense, defendant entitled to instructio n that government has duty to prove beyond reasonable doubt the absence of heat o f passion in order to obtain murder conviction).-12-

In this case, petitioner has appended only four of apparently over fifty instructions given at trial. None of those furnish ed this court are constitutionally infirm. “A state conviction may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the error s had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial.” Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). “‘The burden of demonstrating that an erroneous instruction was so prejudicial that it wi ll support a collateral attack on the constitutional validity of a state court’s judg ment is even greater than the showing required to establish plain error on direct appeal.’” Id. (quoting Henderson v. Kibbe , 431 U.S. at 154). Lofton requires that instructions meet the constitutional requirements of Mullaney v. Wilbur , 421 U.S. at 697-98, i.e., that the “state prove b eyond a reasonable doubt the absence of heat of passion on sudden provocation where the issue is properly presented in a homicide case.” B y attaching only the manslaughter instruction in support of his argument , petitioner has not provided us with a sufficient record from which to conclude that the jury was inadequately instructed, let alone that he has met the heavy bur den of establishing that the instructions violated due process. It is up to cou nsel to see that record excerpts are sufficient for us to consider and determine the issues on appeal; we are under no obligation to fulfill that responsibility. See Rubner & Kutner, P.C. v. United-13-

States Trustee (In re Lederman Enters., Inc.) , 997 F.2d 1321, 1323 (10th Cir. 1993); King v. Unocal Corp. , 58 F.3d 586, 587 (10th Cir. 1995).

Denial of Right to Confrontation Finally, Mr. Shackelford claims the trial court err ed in refusing to allow cross-examination of a detective with respect to a statement given the detective by Mrs. Shackelford the morning after the shooting. The trial court excluded the statement as hearsay (and not admissible under the “excited utterance exception”) and was unpersuaded by petitioner’s alternative the ory that the statement was necessary to correct the false impression left by the prosecution that Mrs. Shackelford would have testified differently than ( i.e., contrary to) petitioner. The magistrate judge determined that exclusion of the statement was well supported by state law and, more importantly, that in any event the prosecutor did not directly comment on how Mrs. Shackelford would have testified. Again, at most petitioner has alleged an error of state law, which a federal court in habeas corpus proceedings does not sit to correct. See Estelle v. McGuire , 502 U.S. 62, 71-72 (1991). We conclude that petitioner has failed to make a su bstantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Accordingly, we DENY petitioner’s request for a certificate of appe alability. The appeal is DISMISSED.-14- Entered for the Court

Monroe G. McKay Circuit Judge