                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                 September 5, 2007
                            FO R TH E TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    RAY DEAN M CHAM ,

             Petitioner-A ppellant,

    v.                                                   No. 07-6082
                                                  (D.C. No. CIV-06-1355-C)
    RANDALL W ORKM AN, W arden,                         (W .D. Okla.)

             Respondent-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         Petitioner Ray Dean M cHam w as charged with first-degree (malice

aforethought) murder but ultimately convicted of first-degree (heat of passion)

manslaughter following a trial in Oklahoma. On direct appeal, he challenged,

among other things, the trial court’s decision to instruct the jury, sua sponte and

over his counsel’s objection, on the lesser included offense of manslaughter. The




*
       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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Oklahoma Court of Criminal Appeals rejected this argument and affirmed his

conviction. See M cHam v. State, 126 P.3d 662 (Okla. Crim. App. 2005). He

subsequently raised the same claim (and others) in an application for habeas

relief, which was denied by the district court. He now seeks a certificate of

appealability (COA) to challenge the district court’s decision solely as to the

lesser-offense issue. Because he has not “made a substantial showing of the

denial of a constitutional right,” as required under 28 U.S.C. § 2253(c)(2), we

deny a COA and dismiss this appeal.

      The state court found the evidence sufficient to support the challenged

instruction, M cHam, 126 P.3d at 668-70, and M r. M cHam does not contest that

point. Rather, he contends that sua sponte use of the instruction, over defense

objection, violated due process in two respects: (1) interjection of a manslaughter

alternative to the murder charge “denied his right to pursue an ‘all or nothing

approach’ strategy in his defense”; and (2) because the matter was introduced at

the instruction stage, he “never had the opportunity to defend against the

manslaughter charge.” Aplt. Opening Br. at 2. The district court rejected the first

objection on the basis that, because “[n]o Supreme Court decision has recognized

a right of a defendant to waive [i.e., to preclude] the giving of a lesser included

offense instruction to the jury,” the OCCA’s legal determination “that Petitioner

had no [such] right . . . is not contrary to, or an unreasonable application of,

clearly established Supreme Court jurisprudence,” as required for habeas relief

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under 28 U.S.C. § 2254(d). 1 R. doc. 17, at 12-14 (M agistrate Judge Report and

Recommendation); id. doc. 19 (Order Adopting Report and Recommendation). In

short, the district court properly enforced the “absolute prerequisite” for habeas

relief “that the asserted constitutional right on which [the petitioner’s claim] rests

derive in clear fashion from Supreme Court precedent.” Carter v. Ward, 347 F.3d

860, 863 (10th Cir. 2003). Our review for a COA is constrained by the same

prerequisite, Dockins v. Hines, 374 F.3d 935, 937-38 (10th Cir. 2004), and in

light thereof we hold M r. M cHam has not shown, as he must, that “reasonable

jurists could debate w hether [he] might be eligible for habeas relief” on the claim

asserted, id. at 937. Cf., e.g., Tiger v. Workman, 445 F.3d 1265, 1268 (10th Cir.

2006) (denying COA for claim asserting constitutional right to particular lesser

included offense instruction where Supreme Court had never recognized right).

      As for the second objection, there is no doubt of a defendant’s right to

notice of, and meaningful opportunity to defend against, the offense(s) of which

he stands in jeopardy. See Cole v. Arkansas, 333 U.S. 196, 201 (1948); Hain v.

Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002). But “[i]t is axiomatic that an

indictment [or charging information] for one crime carries with it notice that

lesser offenses included within the specified crime are also charged and must be

1
       M r. M cHam attempts to fill this gap by citing Spaziona v. Florida, 468
U.S. 447 (1984). But Spaziona holds that the defense has no right to receive an
instruction on a lesser offense barred by the statute of limitations, id. at 454-57,
not that the defense has a right to preclude lesser offense instructions warranted
by the law and evidence.

                                          -3-
defended against.” M ildwoff v. Cunningham, 432 F. Supp. 814, 817 (S.D.N.Y.

1977) (citing cases); see also United States v. No Neck, 472 F.3d 1048, 1053 n.5

(8th Cir. 2007); Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000); Fransaw

v. Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987). W e explicitly recognized this

point in Bibbee v. Scott, No. 98-6445, 1999 W L 1079597, at **4 (10th Cir. Nov.

29, 1999) (unpub.) (holding petitioner received sufficient notice of lesser included

offense, for due process purposes, from indictment on greater offense). As it was

established in Oklahoma at the time of trial that heat-of-passion manslaughter was

available as a lesser offense of first degree murder, see Shrum v. State, 991 P.2d

1032, 1037 (Okla. Crim. App. 1999), defense counsel should have known that the

former w as legally implicated from the outset and that the State could interject it

into the case. M oreover, the factual circumstances of the homicide, as well as

M r. M cHam’s own theory of self-defense, made a heat-of-passion manslaughter

instruction so particularly apt under state law as to preclude any unfair surprise

when the instruction was proposed. See M cHam, 126 P.3d at 668-69. Reasonable

jurists could not debate the lack of merit in M r. M cHam’s due process claim.

      Finally, M r. M cHam argues at length that the trial court violated a state

procedural constraint when it instructed on the lesser offense sua sponte and that

the OCCA deviated from precedent in approving the practice. Specifically, he

asserts that the OCCA had previously held in Shrum that such an instruction may

be given over defense objection only if the prosecution insists, which it did not do

                                          -4-
here. But “federal habeas review does not extend to the correction of purely state

law procedural errors that do not rise to the level of a constitutional due process

violation.” Shipley v. O klahom a, 313 F.3d 1249, 1251 (10th Cir. 2002). And, as

we have seen, due process guarantees are not directly implicated by the practice

followed in M r. M cHam’s trial. Thus, review here “is limited, at most, to

determining whether the state court’s [ruling] was so arbitrary or capricious as to

constitute an independent due process” violation. Lewis v. Jeffers, 497 U.S. 764,

780 (1990); see Bagby v. Sowders, 894 F.2d 792, 794-95 (6th Cir. 1990); see also

Willingham v. M ullin, 296 F.3d 917, 923 (10th Cir. 2002).

      Nothing of the sort occurred here. Admittedly, Shrum could be read as

suggesting that the defendant has a right to preclude sua sponte instructions on

lesser offenses, by (a) holding that if the State requests, such an instruction may

be given over defense objection so long as the defense had notice that the lesser

offense w as implicated, 991 P.2d at 1037, while (b) stating that “if the trial court

sua sponte proposes a lesser included offense instruction[,] . . . the defendant

shall have the right to affirmatively waive any lesser included offense instruction

that the evidence supports and proceed on an all or nothing approach,” id. at 1036

(quotation omitted). In M r. M cHam’s case, however, the OCCA took pains to

explain that the latter dicta did not “establish any absolute right on the part of the

defense to ‘bar’ lesser-offense instructions that are otherwise warranted by the

evidence,” M cHam, 126 P.3d at 669, and to “clarify Shrum by holding that while

                                          -5-
a defendant is free to adopt an ‘all or nothing’ strategy with regard to any

lesser-offense alternatives, the trial court is not bound by that strategy, and may

instruct sua sponte on any lesser-related offense it believes to be supported by the

evidence, without any formal request by the State,” id. at 670. W e know of no

authority remotely suggesting that a court acts arbitrarily in clarifying (or indeed

reconsidering and overruling) its precedent in such judicious fashion.

      The application for a certificate of appealability is DENIED and the appeal

is DISM ISSED.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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