                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 22 2003
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk


    TERRY D. THOMPSON,

                Petitioner - Appellant,
                                                          No. 02-5164
    v.                                              (D.C. No. 00-CV-472-C)
                                                       (N.D. Oklahoma)
    STATE OF OKLAHOMA; MIKE
    MULLIN, * Warden; ATTORNEY
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents - Appellees.


                            ORDER AND JUDGMENT           **




Before MURPHY and PORFILIO , Circuit Judges, and              BRORBY , Senior Circuit
Judge.




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

unanimously to grant the parties’ request for a decision on the briefs without oral


*
      Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002. Fed. R. App. P. 43(b)(2).
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Terry D. Thompson appeals from the district court’s denial of his habeas

corpus petition, filed pursuant to 28 U.S.C. § 2254. He sought to raise four issues

on appeal; we granted a certificate of appealability pursuant to the requirement of

the Antiterrorism and Effective Death Penalty Act as to one.    See 28 U.S.C.

§ 2253(c). On appeal, Mr. Thompson presents arguments on that issue: whether

his waiver of his right to counsel before trial was voluntary, knowing, and

intelligent. He renews his request for a certificate of appealability on the

remaining issues. We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291.

       Mr. Thompson raised his waiver of counsel issue before the state court on

direct appeal from his conviction. The Oklahoma Court of Criminal Appeals

(OCCA) concluded that his waiver was voluntary, knowing, and intelligent,

relying on two state cases,   Braun v. State , 909 P.2d 783 (Okla. Crim. App. 1995),

and Coleman v. State , 617 P.2d 243, 246 (Okla. Crim. App. 1980). The district

court ruled that this conclusion did not meet the deferential standards of AEDPA

and denied habeas relief on that claim. We agree, and affirm the district court’s

ruling on the issue.




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      Under AEDPA, we review the OCCA’s decision to determine whether it

was contrary to, or an unreasonable application of, federal law as set out by the

Supreme Court.    See Upchurch v. Bruce , 333 F.3d 1158, 1162 (10th Cir. 2003);

28 U.S.C. § 2254(d). Petitioner argues that the OCCA’s decision was an

unreasonable application of federal law. He further asserts that this court should

consider its own precedent in making this determination under AEDPA because

our cases “merely discuss[]” how Supreme Court authority on point should be

interpreted. Aplt. Supp. Br. at 10 (quotation omitted). But a review of applicable

Tenth Circuit authority demonstrates that these cases go beyond the general

pronouncements of the Supreme Court, setting out specific requirements which

must appear on the record before waiver of counsel will be considered valid.

      We conclude that the OCCA’s decision, as well as the cases on which it

relies, Braun and Coleman , applies the standards for voluntary, knowing, and

intelligent waiver of counsel set out by the Supreme Court in   Faretta v.

California , 422 U.S. 806 (1975) and    Von Moltke v. Gillies , 332 U.S. 708 (1948).

And, following our careful review of the state court record, we cannot say that the

OCCA’s application of that law was unreasonable under the facts of this case.

See Upchurch , 333 F.3d at 1163 (“[A] federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or


                                           -3-
incorrectly. Rather, that application must also be unreasonable.”) (quotation

omitted).

      We have reviewed the remaining issues raised before the district court,

together with petitioner’s complaint on appeal that the district court violated his

double jeopardy rights by allowing the state to respond to his habeas petition after

an earlier motion to dismiss was denied. We conclude that petitioner has not

“made a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), and deny his renewed request for a certificate of appealability on

these points. Therefore, petitioner’s “Motion to Hear Totality of Appellant’s

Opening Brief” is denied. Petitioner’s “Motion to Recuse” is also denied as moot

because the Tenth Circuit judges he seeks to recuse are not on this panel.

      In sum, we AFFIRM the district court’s denial of habeas relief on the

waiver of counsel issue which was formerly granted a certificate of appealability.

We DENY a certificate of appealability on the remaining issues petitioner would

raise and DISMISS that part of the appeal. We DENY petitioner’s pending

motions.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge

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