                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         February 14, 2017
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ISAIAH C. HAMBURGER,

      Petitioner - Appellant,

v.                                                         No. 16-6281
                                                    (D.C. No. 5:13-CV-00921-F)
JOE M. ALLBAUGH, Director,                                 (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Isaiah Hamburger seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and

dismiss the appeal.

      Hamburger was convicted in Oklahoma state court of lewd acts with a child

under twelve. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his

conviction on direct appeal. Hamburger filed a § 2254 petition in the district court

raising several grounds for relief. The district court denied the petition and declined

to grant a COA. Hamburger now seeks a COA from this court.



      *
         This order is not binding precedent, except under the doctrines of law of the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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy

this standard, Hamburger must show “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. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

To obtain relief under § 2254, a petitioner must show that state court adjudication

either “resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented” or was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” § 2254(d)(1), (2).

      Hamburger argues that the trial court improperly admitted a recording of a

forensic interview of the victim. To the extent that this argument is based on an

alleged violation of Okla. Stat. tit. 12, § 2803.1, which requires a finding of

reliability of child victim statements prior to admission, such a claim is not

cognizable under § 2254. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal

habeas corpus relief does not lie for errors of state law.”). Instead, we look only to

whether a claimed evidentiary error was “so grossly prejudicial that it fatally infected

the trial and denied the fundamental fairness that is the essence of due process.”

Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (quotation and alteration

omitted).

                                            2
      The Supreme Court has identified several factors relevant in determining

whether a child victim’s interview is sufficiently reliable. Idaho v. Wright, 497 U.S.

805, 821-22 (1990) (identifying “spontaneity and consistent repetition,” “mental state

of the declarant,” “use of terminology unexpected of a child of similar age,” and

“lack of motive to fabricate”) abrogated on other grounds by Crawford v.

Washington, 541 U.S. 36, 68-69 (2004). The OCCA reasonably weighed these

factors in concluding the interview was admissible. Hamburger complains that the

interviewer did not specifically discuss the difference between truth and lies with the

victim. The interviewer testified that although some jurisdictions prefer such a

discussion, it is not required by protocol. Hamburger does not direct us to any

clearly established federal law indicating that this factor alone renders a statement

unreliable. Accordingly, his claim fails.

      Hamburger also argues that admission of the interview violated his rights

under the Confrontation Clause. But Hamburger was afforded his right to confront

the victim and cross-examine her. See Delaware v. Van Arsdall, 475 U.S. 673, 678-

79 (1986). The victim testified at trial in a manner generally consistent with the

interview. Defense counsel cross-examined both the victim and the interviewer,

identifying several minor inconsistencies in the victim’s accounts. Hamburger

contends that the victim was not truly available for cross-examination because she

should have been deemed incompetent to testify. But he does not identify any

authority for the proposition that the Confrontation Clause is offended when a

witness is reasonably determined competent to testify under state law and is actually

                                            3
subject to cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

(“[T]he Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.”).

      Lastly, Hamburger contends that he should have been charged with the lesser

offense of oral sodomy. Under Oklahoma law, a prosecutor must charge a more

specific crime only if “charges brought under a more general statute thwart the

legislative intent.” State v. Franks, 140 P.3d 557, 559 (Okla. Crim. App. 2006)

(quotation omitted). As noted above, however, § 2254 relief is not available for

violations of state law. McGuire, 502 U.S. at 67. Under federal law, “so long as the

prosecutor has probable cause to believe that the accused committed an offense

defined by statute, the decision whether or not to prosecute, and what charge to file

or bring before a grand jury, generally rests entirely in his discretion.”

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also United States v. Parsons,

967 F.2d 452, 456 (10th Cir. 1992) (“Prosecutors are not required to prosecute under

another statute perhaps covering the same wrongful acts merely because the other

statute imposes a lesser penalty.”).

      Because reasonable jurists could not debate the district court’s denial of




                                            4
habeas relief, we DENY a COA and DISMISS the appeal.


                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




                                     5
