                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 3, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 JOHN LEE BELL,

              Petitioner - Appellant,                     No. 09-5053
       v.                                              (N.D. Oklahoma)
 DAVID C. MILLER, Warden,                    (D.C. No. 4:05-CV-00393-TCK-PJC)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      John Lee Bell was convicted of first-degree murder in Oklahoma state court

and sentenced to life imprisonment. He filed an application for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States District Court for the

Northern District of Oklahoma. The court dismissed the application. Mr. Bell

seeks a certificate of appealability (COA) to appeal the dismissal. See 28 U.S.C.

§ 2253(c) (requiring COA to appeal dismissal of § 2254 application). Because a

reasonable jurist could not debate the correctness of the district court’s decision,

we deny a COA and dismiss the appeal.

I.    BACKGROUND

      On November 11, 2001, Mr. Bell shot and killed his nephew Sylvester

Okonoboh. He was charged in Oklahoma state court with first-degree murder. At
trial the jury was instructed on first-degree murder, as well as the lesser-included

offenses of second-degree murder and first-degree manslaughter by misdemeanor.

The jury convicted Mr. Bell of first-degree murder, and he was sentenced to life

imprisonment on June 24, 2002.

      After the jury verdict Mr. Bell filed a motion for new trial in which he

contended that the trial court erred by failing to give a required jury instruction

on lesser-included offenses. At the time, the Oklahoma uniform jury instruction,

OUJI-CR 2d 10-27, provided: “You are not required to determine unanimously

that the defendant is not guilty of the crime charged before you may consider a

lesser included offense.” R., Vol. I at 70. In Graham v. State, 27 P.3d 1026,

1028 n.5 (Okla. Crim. App. 2001), the Oklahoma Court of Criminal Appeals

(OCCA) had held that this instruction was mandatory. (It has since been

incorporated into OUJI-CR 2d 10-24.) The trial court denied Mr. Bell’s motion

for new trial.

      On direct appeal to the OCCA, Mr. Bell raised two issues: (1) that the trial

court committed plain error by failing to give a proper instruction regarding when

to consider lesser-included offenses, and (2) that his trial counsel rendered

ineffective assistance by failing to object to the jury instructions that were given.

The OCCA denied Mr. Bell’s appeal, concluding (1) that the failure to give the

jury instruction did not rise to the level of plain error, and (2) that Mr. Bell had

not shown that he was prejudiced by his trial counsel’s allegedly deficient

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performance, as required to establish ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984).

      Mr. Bell then sought postconviction relief in the Oklahoma trial court. His

application raised four grounds for relief. First, he contended that his appellate

counsel had rendered ineffective assistance by failing to argue that Mr. Bell had

suffered prejudice because of his trial counsel’s failure to object to the improper

jury instructions. According to Mr. Bell, the state had failed to present sufficient

evidence on the intent element of first-degree murder, and if the jury had been

properly instructed that they need not unanimously determine that he had not

committed the charged offense before considering any lesser-included offenses,

he would not have been convicted of first-degree murder. Mr. Bell also

contended that the prosecutor had engaged in misconduct by not instructing the

jury about when it could consider lesser-included offenses, that the trial court had

engaged in judicial misconduct by failing to instruct the jury properly, and that

the trial court’s failure to instruct the jury properly was plain error requiring

reversal.

      The trial court denied Mr. Bell’s application for postconviction relief, and

the OCCA affirmed on November 12, 2004. With regard to his claim of

ineffective assistance of appellate counsel, the OCCA held that Mr. Bell had not

shown that he was prejudiced by his appellate counsel’s allegedly deficient

performance. It noted that the jury had found that the evidence presented at trial

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established the elements of first-degree murder beyond a reasonable doubt, and

that Mr. Bell had not established why the jury findings would have been different

if a lesser-included instruction had been given. Thus, it concluded, he had not

established why the result of his direct appeal would have been different if his

appellate counsel had argued that he was prejudiced by his trial counsel’s failure

to object to the improper jury instructions. The OCCA held that Mr. Bell’s three

remaining claims were procedurally barred because they either were raised or

could have been raised in his direct appeal.

      On July 12, 2005, Mr. Bell filed his § 2254 application in federal district

court. He raised five grounds for relief: (1) that his trial counsel rendered

ineffective assistance by failing to object to the jury instructions that were given,

(2) that his appellate counsel rendered ineffective assistance by failing to argue

that he had suffered prejudice because of his trial counsel’s failure to object to the

improper jury instructions, (3) that the prosecutor engaged in prosecutorial

misconduct by failing to instruct the jury properly, (4) that the trial court’s errors

in instructing the jury constituted judicial misconduct, and (5) that the trial

court’s errors in instructing the jury constituted plain error requiring reversal.

The district court dismissed the application. It concluded that Mr. Bell’s

prosecutorial-misconduct and judicial-misconduct claims were procedurally

defaulted, and that the OCCA had appropriately rejected Mr. Bell’s three

remaining claims on the merits.

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II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of a case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

                                          -5-
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

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that
      principle to the facts of the prisoner’s case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and

internal quotation marks omitted). Therefore, for those of Mr. Bell’s claims that

were adjudicated on the merits in state court, “AEDPA’s deferential treatment of

state court decisions must be incorporated into our consideration of [his] request

for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      It is unclear whether Mr. Bell is seeking a COA with respect to the district

court’s ruling that his prosecutorial- and judicial-misconduct claims were

procedurally defaulted. In any event, no reasonable jurist could debate that

ruling. The OCCA did not address the claims because Mr. Bell could have, but

did not, raise them on direct appeal. We “may not consider issues raised in a


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habeas [application] that have been defaulted in state court on an independent and

adequate procedural ground unless the [applicant] can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” Thomas v. Gibson, 218 F.3d

1213, 1221 (10th Cir. 2000) (brackets and internal quotation marks omitted). We

have held “that Oklahoma’s procedural bar to most claims not raised on direct

appeal (other than ineffective counsel claims) is independent and adequate.” Hale

v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000). Mr. Bell has not attempted to

demonstrate cause and prejudice or a fundamental miscarriage of justice.

      Nor could a reasonable jurist debate the district court’s application of

AEDPA deference to Mr. Bell’s three remaining claims. To establish ineffective

assistance of trial or appellate counsel, a defendant must establish (1) that his

“counsel’s representation fell below an objective standard of reasonableness,”

Strickland, 466 U.S. at 688, and (2) that there is “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different,” id. at 694. On direct appeal the OCCA rejected Mr. Bell’s claim

of ineffective assistance of trial counsel because he had failed to establish the

requisite prejudice under Strickland. Mr. Bell has not demonstrated that the

OCCA’s adjudication of this claim was an unreasonable application of the

Strickland standard.

      On postconviction review the OCCA likewise rejected Mr. Bell’s claim of

ineffective assistance of appellate counsel because he had failed to establish the

                                         -7-
requisite prejudice under Strickland. Mr. Bell has not demonstrated that the

OCCA’s adjudication of this claim was an unreasonable application of the

Strickland standard.

       The OCCA rejected Mr. Bell’s final claim—that the improper jury

instructions on lesser-included offenses constituted plain error requiring reversal

under Graham—on direct appeal. Mr. Bell has not suggested that its ruling was

“contrary to, or involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d)(1) (emphasis added). His only argument is

that the OCCA misapplied Graham, a state-law case. No reasonable jurist could

debate that he is entitled to relief under § 2254 on this claim. See Turrentine v.

Mullin, 390 F.3d 1181, 1195–96 (10th Cir. 2004) (relief under § 2254 is available

only for violation of federal law).

III.   CONCLUSION

       We DENY Mr. Bell’s request for a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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