                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 19 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    SHAWN WILLIAM CAIN,

                Petitioner-Appellant,

    v.                                                   No. 99-6331
                                                   (D.C. No. CV-97-1146-A)
    BOBBY BOONE,                                         (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         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.

         Shawn William Cain, proceeding   pro se , seeks a certificate of appealability

(COA) so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas


*
      This order and judgment is not binding precedent, except under the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.
petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be

taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a COA). Following a jury trial, Cain was convicted in Oklahoma state

court of one count of shooting with intent to kill and conspiracy to distribute

a controlled dangerous substance.       1
                                            On June 15, 1993, in accordance with the jury

recommendation, the state trial judge sentenced Cain to life imprisonment on both

counts, to be served consecutively. Cain filed a direct appeal to the Oklahoma

Court of Criminal Appeals (OCCA), which affirmed his conviction on these

counts. He then filed an application for post-conviction relief with the Oklahoma

state district court, which was denied. Cain filed the instant § 2254 habeas

petition with the United States District Court for the District of Oklahoma on

July 19, 1997.

       In the habeas petition, Cain raised ten grounds for relief: (1) the evidence

was insufficient to support his conviction for shooting with intent to kill; (2) the

trial court erred in failing to instruct the jury     sua sponte on a lesser included

offense; (3) the evidence was insufficient to support his conviction for conspiracy

to distribute a controlled dangerous substance; (4) he received ineffective



1
      Cain was also convicted of one count of maintaining a dwelling where
drugs are kept, but on direct appeal, the Oklahoma Court of Criminal Appeals
reversed his conviction on this count and remanded the case for a new trial on this
count. The State eventually dismissed this count against Cain.

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assistance of trial counsel; (5) the trial court erroneously admitted allegedly

involuntary statements he made to police Officer Bret Macy; (6) the trial court

improperly admitted “other crimes” evidence; (7) the police’s entry into his home

was unlawful because the search warrant for his home was not supported by

probable cause; (8) he was arrested without a warrant and held in detention

without a prompt probable cause or bail hearing; (9) the trial court erroneously

allowed the testimony of government witnesses who had not been endorsed by the

State; and (10) he received ineffective assistance of appellate counsel.

       In a thorough and well-reasoned report and recommendation (R & R), the

magistrate judge addressed each of the ten claims raised in Cain’s habeas

petition and recommended that the petition be denied. As to claims (1) and (3),

the magistrate judge found that the evidence, viewed in the light most favorable

to the government, supported Cain’s convictions.               See Jackson v. Virginia ,

443 U.S. 307, 319 (1979). As to claim (2), the magistrate judge found that the

failure of the trial court to instruct the jury         sua sponte on a lessor included

offense was not grounds for federal habeas relief.             See Lujan v. Tansy , 2 F.3d

1031, 1036 (10th Cir. 1993). The magistrate judge found that the evidence did

not support Cain’s allegation that his statements to Officer Macy were

involuntary, and the “other crimes” evidence admitted at trial did not render his

trial fundamentally unfair. Thus, the magistrate judge concluded the OCCA’s


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determinations with respect to claims (5) and (6) were not contrary to, or an

unreasonable application of clearly established federal law. The magistrate judge

found that habeas review was precluded as to claims (7) and (8) because Cain had

a full and fair opportunity to litigate these Fourth Amendment issues in state

court. See Stone v. Powell , 428 U.S. 465, 482 (1976). Moreover, the magistrate

judge noted that a conviction will not be vacated solely because the defendant was

detained prior to trial without a determination of probable cause.     See Gerstein v.

Pugh , 420 U.S. 103, 119 (1975). The magistrate judge found that claim (9),

which Cain failed to raise on direct appeal, was procedurally barred on an

independent and adequate state ground.       See English v. Cody , 146 F.3d 1257,

1259 (10th Cir. 1998). Finally, as to claims (4) and (10), the magistrate judge

found that Cain’s ineffective assistance of trial counsel and appellate counsel

claims did not warrant habeas relief. After conducting a       de novo review, the

district court addressed Cain’s objections to the R & R, adopted the R & R in

its entirety, and denied the petition.

       Cain’s petition and appeal were filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under

AEDPA, Cain is not entitled to receive a COA unless he can make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He

can make such a showing by demonstrating that reasonable jurists could debate


                                            -4-
whether the petition should have been resolved in a different manner, or that

the questions presented deserve further proceedings.      See Slack v. McDaniel ,

120 S. Ct. 1595, 1603-04 (2000).

      Where a district court has rejected the constitutional claims on the
      merits, the showing required to satisfy § 2253(c) is straightforward:
      The petitioner must demonstrate that reasonable jurists would find
      the district court’s assessment of the constitutional claims debatable
      or wrong. . . . When the district court denies a habeas petition on
      procedural grounds without reaching the petitioner's underlying
      constitutional claim, a COA should issue when the prisoner shows,
      at least, that jurists of reason would find it debatable whether the
      petition states a valid claim of the denial of a constitutional right and
      that jurists of reason would find it debatable whether the district
      court was correct in its procedural ruling.

Id. at 1604.

      This court is in substantial agreement with the magistrate judge’s R & R

detailing why Cain is not entitled to habeas relief. We note, however, that

because the magistrate judge issued his recommendation before        Williams v.

Taylor , 120 S. Ct. 1495 (2000), was decided, the R & R cites a now overruled

“reasonable jurist” interpretation with respect to the appropriate standard of

review under § 2254. If the state court adjudicated a particular § 2254 claim on

its merits, a petitioner is not entitled to habeas relief unless the state court’s

ruling “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination


                                           -5-
of the facts in light of the evidence presented in the State court proceeding,”

id. § 2254(d)(2).

       Under the “contrary to” clause, a federal habeas court may grant the
       writ 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, a federal habeas court may grant the writ 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.

Williams , 120 S. Ct. at 1523.

       The magistrate judge quoted    White v. Scott , No. 97-6258, 1998 WL 165162

(10th Cir. Apr. 9, 1998) (unpublished), for the statement that “‘an application of

law to facts is unreasonable only when it can be said that reasonable jurists

considering the question would be of one view that the state court ruling was

incorrect.’” Id. at **2 (quoting Drinkard v. Johnson , 97 F.3d 751, 769 (5th Cir.

1996)). In Williams , decided April 18, 2000, the Supreme Court rejected this

interpretation of the “unreasonable application” clause of § 2254(d)(1) which

refers to a “reasonable jurist” because it is of “little assistance” and “may be

misleading.” Williams , 120 S. Ct. at 1521.       Williams criticized the Drinkard

standard in particular, stating that, “[t]he ‘all reasonable jurists standard’ would

tend to mislead federal habeas courts by focusing their attention on a subjective

inquiry rather than on an objective one.”     Id. at 1522. “Stated simply,” the


                                            -6-
Supreme Court wrote, “a federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s application of clearly

established federal law was objectively unreasonable.”       Id. at 1521. We conclude,

however, that this change in the standard of review has no resulting effect on the

findings of the magistrate judge.

      Upon de novo review of Cain’s application for a COA, the appellate brief,

the R & R, the district court’s order, and the entire record on appeal, including

the complete trial transcripts, we conclude the issues raised by Cain are not

reasonably debatable, subject to a different resolution on appeal, or deserving of

further proceedings. Accordingly, Cain’s application for a COA is DENIED for

substantially those reasons set out in the magistrate judge’s R & R dated June 4,

1999 and the district court’s order dated July 30, 1999, and we DISMISS this

appeal.



                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




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