                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 1, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 BOBBIE OTTO POWERS,

                 Petitioner-Appellant,                    No. 08-6213
          v.                                            (W.D. of Okla.)
 WALTER DINWIDDIE, Warden,                         (D.C. No. CV-07-661-R)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      An Oklahoma jury convicted Bobbie Otto Powers of four counts of

indecent or lewd acts with a child under sixteen in violation of Okla. Stat. tit. 21,

§ 1123(A). The jury sentenced Powers to four fifteen-year prison terms; the state

trial court ordered him to serve these sentences consecutively. On direct appeal,

the Oklahoma Court of Criminal Appeals (OCCA) affirmed Powers’s conviction




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         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.
and sentences. Powers filed an application for post-conviction relief in state

court, which the trial court denied. The OCCA affirmed the denial.

      Powers then filed this habeas petition in federal court pursuant to 28 U.S.C.

§ 2254. The district court referred the case to a magistrate judge, who issued a

well-reasoned report and recommendation. The district court adopted the report

and recommendation and denied Powers’s habeas petition. The court also

declined to issue a certificate of appealability (COA) or grant Powers in forma

pauperis status for purposes of appeal.

      Powers, proceeding pro se in this appeal, 1 renews his request for a COA. A

COA is a jurisdictional prerequisite to our review of the district court’s denial of

Powers’s habeas petition. See Coronado v. Ward, 517 F.3d 1212, 1215 (10th Cir.

2008) (citing Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003)); see also

§ 2253(c)(1). To secure a COA, Powers must make a “substantial showing of the

denial of a constitutional right,” § 2253(c)(2), such that “reasonable jurists would

find the district court’s assessment of [his] constitutional claims debatable or

wrong,” Miller-El, 537 U.S. at 338.

      Powers raises numerous issues in his application for a COA: (1) the OCCA

violated his due process and equal protection rights when it refused to modify his

sentence due to the trial court’s failure to instruct the jury on Oklahoma’s 85


      1
        Because Powers proceeds pro se, we construe his filings liberally. See
Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).

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percent rule; 2 (2) the jury instructions contained various errors that deprived him

of a fair trial; (3) evidence presented at Powers’s preliminary hearing did not

establish probable cause and he was therefore improperly bound over for trial; (4)

Powers was denied a fair trial when the state trial court admitted evidence of his

prior bad acts; and (5) his sentence was unconstitutionally excessive.

      We conclude, based on our independent review of the record, and for

substantially the same reasons given by the district court, that Powers has not

made a “substantial showing of the denial of a constitutional right” with respect

to any of the issues he raises, and we therefore deny his request for a COA. See

§ 2253(c)(2)

      First, state law did not require the OCCA to modify Powers’s sentence to

correct the trial court’s failure to instruct on the 85 percent rule. The OCCA was

merely required to determine whether the error “resulted in a miscarriage of

justice or substantial violation of a constitutional or statutory right.” See Brown

v. State, 177 P.3d 577, 581 (Okla. Crim. App. 2008). The OCCA considered the

issue, but in spite of the 85 percent rule, found Powers’s sentence to be “fair

under the circumstances.” Powers v. State, No. F-2005-793, slip op. at 3 (Okla.

      2
         Under the 85 percent rule, “[p]ersons convicted of: . . . [l]ewd
molestation of a child . . . shall be required to serve not less than eighty-five
percent (85%) of any sentence of imprisonment imposed by the judicial system
prior to becoming eligible for consideration for parole.” Okla. Stat. tit. 21,
§ 13.1. In 2006, while Powers’s direct appeal was pending, the OCCA held that
trial courts should instruct jurors on the 85 percent rule prior to sentencing.
Anderson v. State, 130 P.3d 273, 283 (Okla. Crim. App. 2006).

                                         -3-
Crim. App. Sept. 19, 2006). Therefore, without an independent federal

constitutional violation, the OCCA did not infringe Powers’s federal due process

rights when it refused to modify his sentence under state law. Cf. Carbray v.

Champion, 905 F.2d 314, 318 (10th Cir. 1990) (holding that it is not a violation

of due process for a state court to exercise its discretion, under state law, to

modify a sentence on appeal).

      Nor did the OCCA violate equal protection guarantees by failing to modify

the sentence. Even if the OCCA somehow erred in refusing to modify Powers’s

sentence, the mere misapplication of state law by a state appellate tribunal does

not amount to an equal protection violation. See Cummings v. Sirmons, 506 F.3d

1211, 1237 (10th Cir. 2007) (finding no support for the argument that a state

court violates a defendant’s equal protection rights by erroneously applying state

law). In any event, Powers has failed to show he is similarly situated to other

defendants whose sentences were modified by the OCCA, and therefore cannot

state a prima facie equal protection claim. Cf. United States v. Moore, 543 F.3d

891, 897 (7th Cir. 2008) (denying a defendant’s disparate-sentencing equal

protection claim and recognizing that, under federal law, sentencing is an

“individualized process going well beyond the details of the defendant’s instant

offense”).

      Second, as the district court properly found, none of the various alleged

errors in the jury instructions warrant habeas relief. Powers claims the

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instructions did not adequately differentiate the four charges against him,

provided insufficient material facts to the jury, and did not set forth the dates of

Powers’s criminal acts. According to Powers, the instructions led the jury to

believe it was required to convict him on all four counts or none. Our review of

the record convinces us that Powers has failed to show any of the alleged errors

“so infected the entire trial that the resulting conviction violates due process.”

Cummings, 506 F.3d at 1240 (quoting Henderson v. Kibbe, 431 U.S. 145, 154

(1977)). Powers is therefore not entitled to a COA on his various jury instruction

claims.

      Third, Powers’s claim that there was insufficient evidence presented in his

preliminary hearing for the state to bind him over for trial is not redressable by

way of a habeas petition. A § 2254 petition challenges the validity of a state

prisoner’s conviction and sentence, Yellowbear v. Wyo. Attorney Gen., 525 F.3d

921, 924 (10th Cir. 2008), and the Supreme Court has long held that an “illegal

arrest or detention does not void a subsequent conviction,” Gerstein v. Pugh, 420

U.S. 103, 119 (1975). Because Powers was ultimately convicted, his claim

regarding the sufficiency of the evidence at his preliminary hearing cannot be

grounds for habeas relief. See Montoya v. Scott, 65 F.3d 405, 422 (5th Cir. 1995).

      Fourth, with respect to the evidence of Powers’s prior bad acts, Powers has

not shown that the trial court’s evidentiary rulings violated his constitutional

rights. We give considerable deference to state court evidentiary rulings and

                                          -5-
“may not provide habeas corpus relief . . . unless [those rulings] rendered the trial

so fundamentally unfair that a denial of constitutional rights results.” Duckett v.

Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotations omitted); see also

Smallwood v. Gibson, 191 F.3d 1257, 1277 (10th Cir. 1999) (applying the same

standard to review a state court’s decision to admit evidence of prior bad acts).

Because Powers has not shown his trial was fundamentally unfair, he is not

entitled to a COA on his evidentiary claim.

      Finally, we decline to issue a COA on Powers’s excessive sentence claim.

Powers asserts that because he was seventy years old when he was sentenced, his

consecutive sentences equate to life imprisonment, which he contends is

excessive in this case. But “[t]he Eighth Amendment analysis focuses on the

sentence imposed for each specific crime, not on the cumulative sentence for

multiple crimes.” Hawkins v. Hargett, 200 F.3d 1279, 1285 n.5 (10th Cir. 1999).

Powers’s fifteen-year sentences are within the statutory range of punishment for

lewd acts with a child under sixteen. See Okla. Stat. tit. 21, § 1123(A). These

sentences are not “extraordinary” or “grossly disproportionate” and therefore do

not violate the Eighth Amendment. See United States v. Gillespie, 452 F.3d 1183,

1190–91 (10th Cir. 2006) (collecting authorities).

      For the foregoing reasons, Powers has failed to make a substantial showing

of the denial of a constitutional right. We therefore DENY his request for a COA




                                          -6-
and DISMISS this appeal. We further DENY Powers’s motion to proceed in

forma pauperis.

                                   ENTERED FOR THE COURT

                                   Timothy M. Tymkovich
                                   Circuit Judge




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