                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUL 14 1998
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JAMES E. FLEMING,

          Petitioner-Appellant,

               v.                                       No. 98-6059
                                                  (D.C. No. CIV-97-653-C)
 STEVE HARGETT,                                         (W.D. Okla.)

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      James Fleming seeks a certificate of appealability to appeal the district

court’s denial of his 28 U.S.C. § 2254 habeas petition. He contends he was



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
denied due process by the court’s failure to instruct the jury on voluntary

manslaughter and that he received ineffective assistance of trial and appellate

counsel. Because Fleming has failed to make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

certificate of appealability and dismiss the appeal.

      Fleming was tried in Oklahoma state court in 1994 for first degree murder,

was convicted of the lesser-included offense of second degree murder, and was

sentenced to thirty years’ imprisonment. Fleming argued unsuccessfully in a

motion for resentencing that his counsel was ineffective for failing to challenge

the delay between his arrest and arraignment. Fleming appealed his conviction,

arguing the trial court should have instructed the jury on first degree

manslaughter. The Oklahoma Court of Criminal Appeals affirmed his conviction

in a summary opinion on October 8, 1996. Fleming then filed an application for

post-conviction relief in state court, alleging ineffective assistance by his trial and

appellate counsel for failure to raise several issues. His assertions did not include

failure to challenge the alleged delay between arrest and arraignment. The trial

court denied relief and the state appellate court affirmed.

      Fleming then filed this § 2254 action in federal court, contending failure to

instruct the jury on voluntary manslaughter denied him due process and that he

received ineffective assistance of counsel at trial and on direct appeal. The


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district court adopted the magistrate’s recommendation that relief be denied,

concluding the state trial court’s failure to give a voluntary manslaughter

instruction did not conflict with federal law and that Fleming’s ineffective

assistance claims were without merit.

      Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act of 1996, habeas relief is unavailable on any claim adjudicated

on its merits in state court unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court,” or (2) “was based on an unreasonable

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

proceeding.”

      Fleming’s voluntary manslaughter instruction claim was adjudicated on its

merits in state court, and we conclude that adjudication was consistent with

federal law. Under clearly established federal law, due process requires a jury

instruction on a lesser included offense only when the evidence warrants the

instruction, Hopper v. Evans , 456 U.S. 605, 610 (1982), and in a capital murder

case where the jury would be forced into an all-or-nothing choice between capital

murder and innocence if the instruction was not given.    See Schad v. Arizona , 501

U.S. 624, 646-47 (1991). When a jury is given a choice between capital murder

and second degree murder, instructions on other lesser included offenses are not


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constitutionally required.   Id. Here, because the trial court gave a second degree

manslaughter instruction that was warranted by the evidence, the jury did not face

an all-or-nothing choice between first degree murder and innocence. Fleming was

not denied due process.

         Fleming raised his ineffective assistance claim for failure to challenge the

alleged twelve-day delay between arrest and arraignment in state court in a

motion for resentencing. He did not exhaust his state court remedies.      See 28

U.S.C. § 2254(b)(1)(A). Under § 2254(b)(2), we can deny the claim on the merits

despite his failure to exhaust state remedies. We conclude this claim is without

merit.

         Fleming relies on County of Riverside v. McLaughlin    , 500 U.S. 44 (1991),

to argue his pretrial detention was obviously unlawful and that counsel was

ineffective for failing to challenge it. The Fourth Amendment requires a prompt

judicial determination of probable cause as a prerequisite to an extended pretrial

detention following a warrantless arrest, and a delay of more than forty-eight

hours is generally unreasonable.    Id. at 56-59. However, a conviction will not be

vacated solely because the defendant was detained pending trial without a

determination of probable cause.     Gerstein v. Pugh , 420 U.S. 103, 119 (1975);

United States v. Aranda-Hernandez     , 95 F.3d 977, 979-80 (10th Cir. 1996),   cert.

denied 117 S. Ct. 1314 (1997). Even if the pretrial detention was unlawful,


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counsel could not have successfully challenged Fleming’s prosecution or

conviction on that basis. As Fleming has not shown the pretrial detention resulted

in incriminating statements or otherwise prejudiced his defense, he has failed to

show a challenge to the pretrial detention could have changed the result of the

proceedings. Consequently, his ineffective assistance claim fails because he has

not shown the performance of counsel prejudiced his defense.    See Strickland v.

Washington , 466 U.S. 668, 687 (1984).

      The certificate of appealability is DENIED and the appeal is DISMISSED.

The mandate shall issue forthwith.

                                        Entered for the Court

                                        Mary Beck Briscoe
                                        Circuit Judge




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