                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 4 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JERRY LEE DAVIS,

                Petitioner - Appellant,

    v.                                                   No. 01-7152
                                                     D.C. No. 00-CV-54-S
    MIKE MULLIN, * Warden, Oklahoma                    (E.D. Oklahoma)
    State Penitentiary,

                Respondent - Appellee.


                            ORDER AND JUDGMENT           **




Before O’BRIEN and PORFILIO , Circuit Judges, and         KANE , *** Senior District
Judge.



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

unanimously that oral argument would not materially assist the determination




*
      Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002.
**
      This order and judgment is not binding precedent, except under the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.
***
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
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.

       Petitioner seeks a certificate of appealability (COA) to obtain review of the

district court’s order denying his petition for a writ of habeas corpus. His petition

raised six issues, all of which were considered on the merits by the Oklahoma

Court of Criminal Appeals and decided against him.      Davis v. State , 993 P.2d 124

(Okla. Crim. App. 1999) The district court reviewed the state court’s decision

under the appropriate standard and also concluded petitioner’s claims lacked

merit. Because he has not made a substantial showing of the denial of a

constitutional right, we deny his application and dismiss the appeal.

       In both state and district court, petitioner argued that (1) his convictions for

three separate offenses violated the principles of double jeopardy and double

punishment; (2) his second trial was barred by the double jeopardy clause; (3) the

evidence was insufficient to support his conviction for larceny from a house;

(4) his confession was involuntary because he did not waive his right to counsel

and because he was not brought before a magistrate until a month after his arrest;

(5) the trial court erroneously rejected requested jury instructions on the

reliability of eyewitness identification testimony and the voluntariness of the

confession; and (6) he was denied the right to a speedy trial.




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       Petitioner is not entitled to a writ of habeas corpus on any claim

adjudicated on the merits by a state court unless that adjudication:

       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or
       (2) resulted in a decision that 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); see also Williams v. Taylor , 529 U.S. 362, 412-13 (2000).

Here, because the district court also rejected petitioner’s constitutional claims on

the merits, petitioner must demonstrate that reasonable jurists would find that

decision debatable or wrong.      See Dennis v. Poppel , 222 F.3d 1245, 1249

(10th Cir. 2000).

       The Oklahoma Court of Criminal Appeals correctly considered the three

offenses of which petitioner was convicted under the double jeopardy test of

Blockburger v. United States , 284 U.S. 299, 304 (1932), and determined that each

of the offenses charged contained elements the others did not.          Davis , 993 P.2d

at 125. The state court also determined that petitioner’s retrial did not raise a

double jeopardy issue because petitioner had moved for the mistrial based on

witness testimony (in violation of a motion in limine) that was not caused by any

actions of the state. Thus, the principles of         Oregon v. Kennedy , 456 U.S. 667,

676 (1982) (only where governmental conduct was intended to goad defendant

into moving for mistrial may defendant raise double jeopardy bar to second trial),

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were not violated.   Davis , 993 P.2d at 127. The state court further determined,

based on a review of the record, that there was sufficient evidence to support the

conviction for larceny from a house conviction.   Id. The district court likewise

reviewed the state court record and concluded the evidence was sufficient under

the standards of Jackson v. Virginia , 443 U.S. 307 (1979). Our own review

supports the conclusions of the state and district courts.

      Petitioner next contends that his confession was involuntary because he

asked to speak with an attorney before being questioned and did not waive his

rights under Miranda v. Arizona , 384 U.S. 436 (1966). He further states the

confession should have been suppressed because he was not taken before a

magistrate until a month after his arrest. The record contains sufficient evidence

to support the state court’s determination that petitioner had knowingly and

voluntarily waived his   Miranda rights and that he had not asked to speak with an

attorney. Under the totality of the circumstances, it is clear that the confession

was voluntarily obtained.   See Miller v. Fenton , 474 U.S. 104, 112 (1985). With

regard to his claim that was not taken before a magistrate in a timely manner, the

state court did not address this as a separate issue apart from a general

determination that the confession was voluntary. The district court did address

the matter, however, and we concur with that court’s evaluation. Petitioner has

failed to establish how the voluntariness of his confession, which occurred on the


                                           -4-
day of his arrest, was affected by not appearing before a magistrate for a month.

See Castro v. Ward , 138 F.3d 810, 821 (10th Cir. 1998).

       Next, petitioner claims he was entitled to jury instructions on the issues of

eyewitness testimony and the voluntariness of his confession. The Court of

Criminal Appeals found no error as to the eyewitness testimony instruction and

held that the lack of an instruction on the voluntariness of petitioner’s confession

was harmless in view of the entire record.     Davis , 993 P.2d at 127. The district

court reviewed this issue under the appropriate standard requiring that a state

court conviction be set aside in a habeas proceeding only “when the errors had the

effect of rendering a trial so fundamentally unfair as to cause a denial of a fair

trial.” Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995).

       Finally, petitioner claims he was denied his right to a speedy trial. The

district court properly considered the factors enumerated in    Barker v. Wingo ,

407 U.S. 514, 530 (1972): length of the delay, reasons for the delay, petitioner’s

assertion of his right to a speedy trial, and prejudice. The record reflects that the

delay was attributable at least in part to petitioner, who at least once offered to

plead guilty but changed his mind, changed attorneys, and waited nearly thirteen

months to assert his speedy trial right. Petitioner has also failed to demonstrate

any prejudice occasioned by the delay. He is therefore not entitled to habeas

relief on this ground.


                                             -5-
      For these and the reasons set forth by the district court in its order of

October 31, 2001, the application for a certificate of appealability is DENIED, the

motion for relief from paying costs or fees is DENIED, and the appeal is

DISMISSED.


                                                     Entered for the Court



                                                     Terrence L. O’Brien
                                                     Circuit Judge




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