                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  June 30, 2010
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                   Clerk of Court


WILLIAM DEAN PHILLIPS, JR.,

             Petitioner - Appellant,
                                                        No. 10-6032
       v.
                                                      (W.D. Oklahoma)
                                                (D.C. No. 5:08-CV-01248-M)
STATE OF OKLAHOMA; GREG
WILLIAMS,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      Proceeding pro se, William Dean Phillips, Jr., seeks a certificate of

appealability (“COA”) from this court so he can appeal the district court’s denial

of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from a final order disposing of a § 2254

petition unless the petitioner first obtains a COA). Because Phillips has not

“made a substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2).
      Phillips was convicted by an Oklahoma jury of first degree murder and

sentenced to life imprisonment without the possibility of parole. Phillips

appealed the conviction and sentence, raising (1) numerous challenges to the jury

instructions, (2) a claim that victim impact evidence was improperly admitted, (3)

an allegation of prosecutorial misconduct, and (4) a cumulative error argument.

The Oklahoma Court of Criminal Appeals (“OCCA”) considered Phillips’s

arguments, but affirmed his conviction and sentence.

      Proceeding pro se, Phillips filed an application for post-conviction relief in

Oklahoma state court. In the post-conviction application, Phillips claimed he was

denied the effective assistance of both trial and appellate counsel. The state

district court denied Phillips’s application, concluding the ineffective assistance

of trial counsel claims were waived because they were not raised on direct appeal

and further concluding Phillips failed to show deficient performance on the part

of his appellate attorney. See Strickland v. Washington, 466 U.S. 668, 677-78

(1984); Boyd v. State, 915 P.2d 922, 924 (Okla. Crim. App. 1996). The OCCA

summarily affirmed the denial of post-conviction relief in an unpublished order.

      Phillips filed the instant § 2254 habeas application on November 19, 2008,

and an amended application on March 31, 2009. In his amended application,

Phillips raised the following eight claims of error: (1) the jury instructions were

contradictory, confusing, and lowered the state’s burden of proof, (2) the trial

court refused to give a lesser-included instruction on manslaughter, (3) the trial

                                          -2-
court omitted part of the model jury instruction on the issue of flight, (4) the trial

court violated his right to due process by failing to instruct the jury on the

cautionary use of eyewitness identification, (5) the trial court erroneously allowed

impermissible victim impact evidence and inflammatory prosecutorial comments,

(6) the jury was not instructed that he would be required to serve 85% of his

sentence before becoming eligible for parole, (7) cumulative errors resulted in the

denial of due process, and (8) appellate counsel was ineffective for failing to

assert a claim of ineffective assistance of trial counsel on direct appeal. A federal

magistrate judge addressed each of Phillips’s claims in a comprehensive report

and recommendation. The district court adopted the magistrate judge’s

recommendation and dismissed Phillips’s § 2254 application.

      The court began by noting that Phillips’s first seven claims were raised on

direct appeal. Thus the standard for reviewing those claims was governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C.

§ 2254(d)(1). As the court recognized, Phillips’s claim that he was entitled to a

lesser-included instruction, however, is not cognizable in a federal habeas corpus

proceeding. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“The

Supreme Court has never recognized a federal constitutional right to a lesser

included offense instruction in non-capital cases and neither has this court.”

(citation omitted)). The court next concluded that Phillips’s claims of error based

on the jury instructions involved, in part, only allegations of state law error and,

                                          -3-
thus, were not cognizable in a federal habeas corpus proceeding. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). However, to the extent those claims also

implicated Phillips’s federal constitutional rights, the court concluded Phillips

failed to demonstrate his trial was rendered fundamentally unfair and, thus, he

was not entitled to relief even assuming error. See Maes v. Thomas, 46 F.3d 979,

984 (10th Cir. 1995) (“A state conviction may only be set aside in a habeas

proceeding on the basis of erroneous jury instructions when the errors had the

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

trial.”).

       The district court then reviewed Phillips’s claims related to the admission

of victim impact evidence, including comments made by the prosecution, and

Phillips’s other allegations of prosecutorial misconduct. The court concluded

Phillips failed to show how any of the challenged comments or evidence rendered

his trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637,

642-48 (1974); Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002); Cummings

v. Evans, 161 F.3d 610, 618 (10th Cir. 1998). In sum, the district court concluded

the state courts’ adjudication of Phillips’s first seven claims was not contrary to,

nor an unreasonable application of clearly established federal law. 28 U.S.C.

§ 2254(d). Finally, the district court considered Phillips’s claims of ineffective

assistance of appellate counsel on the merits, concluding Phillips was unable to

meet his burden under Strickland. See 466 U.S. at 677-78.

                                          -4-
      To be entitled to a COA, Phillips must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Phillips has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Phillips need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (quotations omitted).

      This court has reviewed Phillips’s appellate brief and application for COA,

the Report and Recommendation, the district court’s order, and the entire record

on appeal pursuant to the framework set out by the Supreme Court in Miller-El

and concludes Phillips is not entitled to a COA. The district court’s resolution of

Phillips’s habeas application is not reasonably subject to debate and his claims are

not adequate to deserve further proceedings. Accordingly, Phillips has not “made

a substantial showing of the denial of a constitutional right” and is not entitled to

a COA. 28 U.S.C. § 2253(c)(2).




                                          -5-
This court denies Phillips’s request for a COA and dismisses this appeal.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




                                 -6-
