                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      October 18, 2006
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court


 JAM ES RICKEY EZELL, III,

                 Petitioner - A ppellant,                No. 06-5146
          v.                                          (N. D. Oklahoma)
 M IKE M ULLIN, W arden,                          (D.C. No. 03-CV-48-TCK)

                 Respondent - Appellee.




               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.




      James Ezell III seeks a certificate of appealability (COA), see 28 U.S.C.

§ 2253(c)(1) (requiring a COA to appeal the denial of habeas relief), to appeal the

district court’s denial of his application for a writ of habeas corpus under

28 U.S.C. § 2254. M r. Ezell’s application claimed that (1) his convictions were



      *
       After examining the brief 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
obtained through evidence derived from an unlawful arrest; (2) during jury

selection he was denied equal protection by the exclusion of an African-American

juror, and the state trial court abused its discretion in excusing another juror for

cause; (3) Oklahoma’s statute prohibiting trafficking in controlled drugs is

unconstitutional because it incorporates an irrebuttable presumption of mens rea

and because the absence of an intent requirement denied him equal protection; (4)

the trial court erred in not instructing the jury on the lesser-included offense of

possession of cocaine with intent to distribute; and (5) his trial counsel provided

ineffective assistance during second-stage proceedings (that is, sentencing

proceedings) w hen he did not object to the admission of prior convictions. In this

court M r. Ezell also contends that (1) he w as denied equal protection because

Oklahoma’s statute prohibiting trafficking in controlled drugs applies to

possession of five or more grams of crack cocaine but only 28 or more grams of

powder cocaine, and (2) he received ineffective assistance of counsel during first-

stage proceedings (that is, proceedings to determine guilt). The district court

denied M r. Ezell’s habeas application and his request for a COA. W e deny a

COA and dismiss the appeal.

      On August 19, 1998, M r. Ezell was arrested at a motel in Tulsa, Oklahoma,

in possession of a baggie containing 5.24 grams of crack cocaine. Charged with

(1) trafficking in illegal drugs, (2) resisting an officer, and (3) public intoxication,

he was found guilty on all three counts on November 9, 2000, and was sentenced

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to terms of imprisonment of 70 years on the first count, one year on the second,

and 14 days on the third. The Oklahoma Court of Criminal Appeals affirmed

M r. Ezell’s convictions but lowered his sentence on the first count to 40 years

because of ineffective assistance of counsel at second-stage proceedings.

      On January 10, 2003, M r. Ezell filed an application for habeas relief in the

United States District Court for the Northern District of Oklahoma. The district

court denied his application on July 17, 2006, and his request for COA on

August 10, 2006.

      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. M cDaniel, 529 U.S. 473,

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

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

“debatable or wrong.” Id.

      The A ntiterrorism 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,

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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).

      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) (internal quotation

marks, brackets, and citations omitted). Therefore, for those of M r. Ezell’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).

      In denying the claims raised in M r. Ezell’s habeas application, the district

court held that (1) under Stone v. Powell, 428 U.S. 465, 494 (1976), M r. Ezell’s

illegal-arrest claim fails because he had a full and fair opportunity to litigate that

claim in state court; (2) M r. Ezell could not prevail on his challenge to jury

selection because he had failed to show that the prosecutor intentionally



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discriminated on the basis of race in exercising peremptory challenges, and he

had failed to present clear and convincing evidence to overcome the presumption

that the trial court’s factual finding of the juror’s lack of impartiality was correct;

(3) M r. Ezell’s challenge to the Oklahoma trafficking statute lacked merit because

the district court was bound by a state-court interpretation that there was no

irrebuttable presumption of mens rea in the statute, and M r. Ezell had not

established that a state-court determination that the statute did not deny him equal

protection was contrary to or an unreasonable application of federal law; (4) the

district court could not review a claim based on a state court’s failure to give a

lesser-included-offense instruction in a noncapital case, see Dockins, 374 F.3d at

938; and (5) the state courts had already granted M r. Ezell all the relief to which

he was entitled on his ineffective-assistance claim.

      The district court’s written order thoroughly explains why these claims

were rejected. Reasonable jurists could not debate the correctness of the district

court’s denial of M r. Ezell’s claims. See Slack, 529 U.S. at 484.

       W e need not address the claims first raised by M r. Ezell in his application

for a COA from this court. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir.

2005) (claims raised for the first time on appeal are deemed to be w aived).

      Accordingly, we DEN Y M r. Ezell’s application for a CO A and DISM ISS




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the appeal.

              ENTERED FOR THE COURT


              Harris L Hartz
              Circuit Judge




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