This order and judgment is not binding precedent except under the *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 (eff. Dec.

1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would 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 submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

January 4, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ASA S. FOREMAN,

Petitioner-Appellant, No. 06-5186

v. (N.D. of Okla.)

ERIC FRANKLIN, Warden,

Respondent-Appellee.

(D.C. No. CV-02-770-TCK)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges. 

**

Asa Foreman seeks a certificate of appealability (“COA”) to appeal the

district court's denial of his petition for federal habeas corpus relief under 18

U.S.C. § 2254. For substantially the same reasons as the district court, we deny

his request and dismiss this appeal.
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I. Background

This case arises out of a robbery of a Texaco convenience store in Tulsa,

Oklahoma on October 25, 1999. Just after 6:00 a.m., a man, later identified as

Foreman, wearing a ski mask and gloves and carrying a butcher knife ordered the

store clerk to open the safe and hand over the money. Though he did not

physically harm her, Foreman used the knife to threaten the clerk, after which he

ran from the store. A customer who had been in the store earlier, Roderick

Sanders, saw Foreman running down the street with the mask and sack in hand

and tackled him from behind. Foreman struck Sanders in the temple with the

knife during the scuffle. With the help of two other men, Sanders subdued

Foreman until police arrived.

Police arrested Foreman at the scene and recovered a ski mask, gloves, a

butcher knife, and a canvas bag containing $8,627.40. Before being taken to the

police station, the Texaco clerk positively identified Foreman as the man that

robbed the store. At the station, Foreman wrote and signed a confession

admitting the robbery.

Foreman was convicted by a jury on three counts: robbery with a dangerous

weapon, assault with a dangerous weapon while masked, and assault and battery

with a dangerous weapon. He was sentenced to three consecutive terms totaling

fifty-five years of imprisonment. His conviction was affirmed on direct appeal,

after which he filed this petition for federal habeas corpus.
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In his § 2254 petition, Foreman alleges the same three issues he raised on

direct appeal: (1) his convictions for both robbery with a dangerous weapon and

assault with a dangerous weapon while masked violate an Oklahoma statute

prohibiting more than one punishment for the same offense; (2) prosecutorial

misconduct requires a new trial or modification of his sentences; and (3) the trial

court erred in refusing his requested jury instructions regarding lesser included

offenses. The district court denied his petition and Foreman appeals.

II. Discussion 

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), when

a petitioner’s claims have already been adjudicated in state court, the petitioner

may only obtain federal habeas relief if the state decision is “contrary to, or

involved an unreasonable application of, clearly established Federal law,” or “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). See also Williams

v. Taylor, 529 U.S. 362, 402 (2000); Maynard v. Boone, 468 F.3d 665, 669 (10th

Cir. 2006). Since the Oklahoma Court of Criminal Appeals (OCCA) has already

adjudicated each of Foreman's claims on direct appeal, we apply this standard

from § 2254(d).

Foreman’s first claim is that his convictions for assault with a dangerous

weapon while masked and robbery with a dangerous weapon—both arising out of

his confrontation with the Texaco store clerk—violate the prohibition on multiple
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punishments found at Okla. Stat. tit. 21, § 11. The district court was correct that

this is not a cognizable claim for federal habeas relief because we lack authority

to review a state court’s interpretation of its own laws. Estelle v. McGuire, 502

U.S. 62, 67–68 (1991). Instead, our role is limited to deciding whether a

conviction violated the Constitution or laws of the United States. 28 U.S.C.

§ 2254(a).

To the extent that Foreman’s claim can be construed as stating a violation

of the federal constitutional prohibition on double jeopardy, we agree Foreman is

not entitled to relief on that basis. Whether punishments are considered

“multiple” for purposes of double jeopardy is a question of legislative intent. 

Ohio v. Johnson, 467 U.S. 493, 499 (1984). But in situations like this one where

legislative intent is unclear, we apply the Blockburger test: “where the same act

or transaction constitutes a violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304 (1932). Assault with a dangerous weapon while

masked and robbery with a dangerous weapon, clearly require proof of distinct

elements—the latter requires something to be stolen. Thus, the dual conviction

does not violate double jeopardy.

Foreman's second claim likewise fails under our precedents. He argues

prosecutorial misconduct warrants a reversal for a new trial or a modification of
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his sentences. The OCCA found that six of eight allegedly improper comments

by the prosecutor were not objected to at trial and did not constitute plain error. 

With respect to the remaining two, the OCCA determined that one caused merely

harmless error while any error caused by the second was cured on subsequent

questioning. Petitioners are entitled to habeas corpus relief for prosecutorial

misconduct only if the misconduct is so extreme that it renders the entire trial

fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642–48 (1974);

Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998). Because we agree any

alleged misconduct in this case did not result in a violation of due process, we

affirm the district court’s rejection of Foreman’s second claim.

Finally, we also reject Foreman’s third claim, alleging the trial court

committed reversible error by denying his request for lesser included offense jury

instructions. Under Tenth Circuit law, the failure of a state court to instruct on

lesser included offenses in a non-capital case never raises a constitutional

question. Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993). In any event, the

OCCA did not err in concluding that the instruction was not warranted based on

the evidence presented at trial.
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III. Conclusion

For the foregoing reasons, we DENY Foreman’s request for a COA.

Entered for the Court,

Timothy M. Tymkovich

Circuit Judge