                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           DEC 9 2004
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 JAMES H. GORDON,

              Petitioner - Appellant,                    No. 04-6223
       v.                                        (D.C. No. CIV-03-1342-M)
 RON WARD, Director,                                    (W. D. Okla.)

              Respondent - Appellee.


                                        ORDER


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.


      Applicant James H. Gordon, appearing pro se, seeks to appeal the district

court’s denial of his application for a writ of habeas corpus. For Applicant to

proceed on appeal, he must obtain a certificate of appealability (COA). See 28

U.S.C. § 2253(c)(1)(A). Under Fed. R. App. P. 22(b)(2) we deem his notice of

appeal an application for a COA.

      We grant a COA only if Applicant “has made a substantial showing of the

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

“includes showing that reasonable jurists could debate whether . . . 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 and citation omitted).

      An Oklahoma jury convicted Applicant of grand larceny after former

conviction of two or more felonies. He was sentenced to 40 years’ imprisonment.

The Court of Criminal Appeals of the State of Oklahoma (OCCA) affirmed his

conviction. He was denied post-conviction relief in state court. The OCCA

affirmed the denial. Applicant then filed this application for relief under 28

U.S.C. § 2254 in the United States District Court for the Western District of

Oklahoma. The district court adopted the magistrate judge’s Report and

Recommendation and denied the application.

      Applicant asserts in his application that (1) his conviction was not

supported by sufficient evidence and (2) prosecutorial misconduct deprived him

of his due process right to a fundamentally fair trial. He raised both these

grounds in his direct appeal in state court. We may not grant him relief with

respect to a claim adjudicated on the merits by the state court unless the

adjudication

            (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; 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.


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28 U.S.C. § 2254(d). Our review of Applicant’s claims under this standard

reveals that neither merits a COA.

      Applicant contends that the evidence at trial was insufficient to prove that

the value of the item taken from J.C. Penney, a comforter, was in excess of $50.

At trial, two J.C. Penney’s loss-prevention officers testified that the value of the

comforter was $145, based upon checks of the price tag and the lot number. Both

witnesses testified that the comforter was not on sale at the relevant time.

Applicant countered this testimony by testifying that he observed in a J.C.

Penney’s catalog that the sale price of the comforter was $29.99. The OCCA held

that “[d]espite conflicting testimony, a rational trier of fact could find beyond a

reasonable doubt that the value of the comforter was over $50.” Gordon v. State,

No. F-2001-339, Summary Opinion at 2 n.1 (Okla. Crim. App. Feb. 20, 2002)

(unpublished).

      Applicant also asserts that he was denied a fair trial because of

prosecutorial misconduct. Although he does not specify in his application any

comments made by the prosecutor, he argued in his direct appeal that the

prosecutor improperly attempted to define “beyond a reasonable doubt” for the

jurors during voir dire and that the prosecutor had improperly attacked his

credibility during closing argument. The OCCA reviewed this claim for plain

error and determined that Applicant had failed “to show any prejudice resulting


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from the prosecutor’s comments.” Id. at 2. It further stated: “The prosecutor’s

comments during voir dire that ‘reasonable doubt’ does not mean ‘beyond a

shadow of a doubt’ or ‘beyond all doubt’ does not constitute error. Also, the

prosecutor’s comments during closing arguments did not constitute error because

they were supported by the evidence.” Id. at 2 n.2 (citations omitted).

      Applicant has failed to show that the state court’s decision was contrary to

or involved an unreasonable application of clearly established federal law or was

an unreasonable determination of the facts in light of the evidence presented.

Jurists of reason would not debate whether the district court properly denied his

application. For substantially the same reasons set forth in the district court’s

June 14, 2004, Order and the magistrate judge’s May 20, 2004, Report and

Recommendation, we DENY a COA and DISMISS the appeal.

                                        ENTERED FOR THE COURT



                                        Harris L Hartz
                                        Circuit Judge




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