                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JOE LEWIS HOSKINS,

          Petitioner-Appellant,

 v.                                                        No. 00-5063
                                                           (N.D. Okla.)
 STEVE HARGETT,                                     (D.Ct. No. 97-CV-231-K)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Joe Lewis Hoskins, a state inmate appearing pro se, appeals the


      *
          This order and judgment is not binding precedent except under the doctrines of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.
district court’s decision denying his habeas corpus petition filed pursuant to 28

U.S.C. § 2254. We deny Mr. Hoskin’s request for a certificate of appealability

and dismiss his appeal.



      A jury convicted Mr. Hoskins of first degree murder of Bobbie Lee Smith,

and the court sentenced him to life in prison without the possibility of parole.

Evidence at trial established Mr. Hoskins brutally beat Ms. Smith with a lead pipe

and a metal crutch for approximately an hour with such force that the metal crutch

broke into pieces. At trial, Mr. Hoskins did not deny killing Ms. Smith, but

contended he acted in self-defense. Following his conviction, Mr. Hoskins filed a

direct appeal with the Oklahoma Court of Criminal Appeals, raising multiple

grounds of error. The court affirmed Mr. Hoskins’ conviction on the merits.



      Following his direct state appeal, Mr. Hoskins filed his federal § 2254

petition, raising several grounds for error. The district court denied Mr. Hoskins’

§ 2254 petition. On appeal, Mr. Hoskins raises two of the grounds of error raised

in his petition and addressed by the district court. Specifically, he contends the

state trial court (1) materially suppressed his right to present a defense when it

admonished the jury to disregard his statement Ms. Smith killed her boyfriend,

and (2) committed reversible error by refusing to instruct the jury on the lessor


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offenses of First Degree Manslaughter by Resisting Criminal Attempt and Second

Degree Murder.



      Our review of Mr. Hoskins’ appeal begins with our standard of review. We

review the legal basis for the district court’s denial of Mr. Hoskins’ § 2254

petition de novo and its factual findings under the clearly erroneous standard. See

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999,) cert. denied, 120 S. Ct.

944 (2000). Because this is a habeas review, we will not disturb the state court’s

evidentiary rulings unless Mr. Hoskins demonstrates the court’s error was “so

grossly prejudicial it fatally infected the trial and denied [him] the fundamental

fairness that is the essence of due process.” Fox. v. Ward, 200 F.3d 1286, 1296

(10th Cir. 2000) (quotation marks and citation omitted), cert. denied, ___ S. Ct.

___, 2000 WL 1281480 (U.S. Oct. 10, 2000) (No. 00-5995). Because we are

reviewing a § 2254 petition, we may not grant habeas relief unless the state

court’s decision was:

      “(1) ... contrary to, or involved an unreasonable application of,
      clearly established federal law ...; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.”

Rogers, 173 F.3d at 1282 (quoting 28 U.S.C. §§ 2254(d)(1), (2)). In order to

obtain a certificate of appealability, Mr. Hoskins must make “a substantial

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



      Under these standards and the circumstances presented, we conclude Mr.

Hoskins fails to make substantial showing of the denial of a constitutional right as

required by § 2253(c)(2). We make this determination after carefully reviewing

the pleadings, record on appeal, and the district court’s decision.



      We begin by noting the district court conducted a well-explained discussion

of the issues Mr. Hoskins raises on appeal. Applying the controlling Supreme

Court and Tenth Circuit authority, the district court addressed Mr. Hoskins’ claim

the trial court erroneously prohibited him from testifying Ms. Smith previously

killed another individual. The district court, like the Oklahoma Court of Criminal

Appeals, concluded that even if the trial court erred in prohibiting this evidence,

it did not significantly influence the jury’s decision in light of the other evidence

admitted concerning Ms. Smith’s reputation as a violent person. We agree. At

trial, Mr. Hoskins testified the victim, Ms. Smith, maintained a reputation in the

community for violence and he feared she would kill him. When asked why he

was afraid, he answered “[b]ecause awhile back, she had killed her boyfriend.”

The state trial court sustained the state’s objection to this statement and

admonished the jurors not to consider it. As both the Oklahoma Court of


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Criminal Appeals and district court recognized, the colloquy between defense

counsel and Mr. Hoskins immediately following the admonishment shows

introduction of evidence concerning Ms. Smith’s volatility and relating to Mr.

Hoskins’ self-defense theory that he feared Ms. Smith would kill him:

      Q: (By Ms. Johnson) ... Why were you afraid?

      A: Because I have seen stuff with her former boyfriends that she hurt.

      Q: Have you ever seen her injure another man.

      A: Yes.

      ...

      Q: (By Ms. Johnson) Have you ever seen her injure another man
      with a weapon, Joe?

      A: Yes, I have.

      Q: Were you thinking about that at the time this fight occurred?

      ...

      A. Yes.



      As the Oklahoma Court of Criminal Appeals further ascertained, Mr.

Hoskins also presented other evidence concerning Ms. Smith’s volatility through

the testimony of his common-law wife, Gladys Verner. 1 Moreover, the Oklahoma


      1
        For example, when asked what Ms. Smith’s reputation in the community was,
Ms. Verner said “when she drinks she get[s] out of control.” Ms. Verner also testified she

                                           -5-
Court of Criminal Appeals pointed out the brutal one-hour beating of Ms. Smith

did not support Mr. Hoskins’ self-defense theory. Consequently, it determined

the excluded testimony “could have added nothing to the evidence presented.” In

other words, even if the trial court erred in excluding Mr. Hoskins’ statement, its

exclusion did not prejudice his defense or the outcome of his trial. Given our

review of the evidence, we cannot say the Oklahoma Court of Criminal Appeals’

ruling on the exclusion of Mr. Hoskins’ statement resulted in a decision contrary

to clearly established federal law or was based on an unreasonable determination

of the facts in light of the evidence presented at trial. See 28 U.S.C. §§

2254(d)(1), (2); Valdez v. Ward, 219 F.3d 1222, 1229 (10th Cir. 2000); Rogers,

173 F.3d at 1282.



      As to the trial court’s failure to provide instructions on First Degree

Manslaughter by Resisting Criminal Attempt and Second Degree Murder, the

Oklahoma Court of Criminal Appeals concluded the evidence and Oklahoma

statutory law did not support giving such instructions. The Oklahoma court first

determined the fact Mr. Hoskins brutally beat Ms. Smith for over an hour, with

such severity it broke a metal crutch into pieces, did not meet the statutory



and Ms. Smith previously fought with each other and on one occasion after drinking, Ms.
Smith hit her.


                                          -6-
requirements for First Degree Manslaughter by Resisting Criminal Attempt, which

required a showing of honest but unreasonable belief that Mr. Hoskins was in

danger of injury or that slaying was the only way to prevent injury to himself.

Next, it found Mr. Hoskins’ theory of intentional killing due to self-defense

inconsistent with the act of second degree murder which requires no premeditated

intent to kill. The federal district court afforded the state courts’ ruling on these

issues a presumption of correctness.



      Mr. Hoskins incorrectly contends the district court’s decision is contrary to

the Supreme Court’s ruling in Beck v. Alabama, 447 U.S. 625 (1980) and our

decision in Hogan v. Gibson, 197 F.3d 1297 (10th Cir. 1999), cert. denied, ___ S.

Ct. ___, 2000 WL 794991 (U.S. Oct. 10, 2000) (No. 99-6147). First, the

principles announced in those decisions do not affect Mr. Hoskins’ appeal

because they concern capital conviction cases, not noncapital cases like Mr.

Hoskins’. See Beck, 447 U.S. at 627, 638 n.14; Hogan, 197 F.3d at 1302-04. In

addition, in Hogan the evidence supported giving instructions on the lesser

offense of first degree manslaughter. Id. at 1303-05, 1308-12. In this case, the

state court clearly determined the evidence and the applicable state statutory law

did not support Mr. Hoskins’ request for instructions on First Degree

Manslaughter by Resisting Criminal Attempt or Second Degree Murder. Even if


                                          -7-
we disagreed, we have held a petitioner in noncapital cases is not entitled to a

lesser-included offense instruction, regardless of whether we believe sufficient

evidence supports it. See Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993),

cert. denied, 505 U.S. 1120 (1994).



      Thus, as the federal district court acknowledged, the Oklahoma Court of

Criminal Appeal’s determination on this issue is entitled to a presumption of

correctness under 28 U.S.C. § 2254(e)(1), which Mr. Hoskins failed to

sufficiently overcome. See Valdez, 219 F.3d at 1229. In sum, Mr. Hoskins fails

to show the Oklahoma court’s ruling on the requested lessor instructions resulted

in a decision contrary to or an unreasonable application of clearly established

federal law, or was based on an unreasonable determination of the facts in light of

the evidence presented at trial. See 28 U.S.C. §§ 2254(d)(1), (2); Valdez, 218

F.3d at 1229-30; Rogers, 173 F.3d at 1282. In other words, Mr. Hoskins fails to

show the state court’s ruling was unreasonable. Cf. Valdez, 219 F.3d at 1229-31.



      Accordingly, for substantially the same reasons set forth in the district

court’s March 29, 2000 Order, we deny Mr. Hoskins’ request for a certificate of

appealability and DISMISS his appeal.




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Entered by the Court:

WADE BRORBY
United States Circuit Judge




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