                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   March 1, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 TROY L. SPRADLING,

       Petitioner - Appellant,
                                                        No. 09-6195
 v.                                              (D.C. No. 08-CV-00793-D)
                                                        (W.D. Okla.)
 MIKE ADDISON,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Defendant-Appellant Troy L. Spradling, a state inmate represented by

counsel, seeks a certificate of appealability (COA) to appeal the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. To obtain a COA, Mr. Spradling

must make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Mr.

Spradling has not made the requisite showing, and therefore we deny a COA and

dismiss the appeal.



                                    Background

      Following a jury trial, Mr. Spradling was convicted of one count of lewd
acts with a child under 16 (count two), one count of sexual battery (count ten),

and two counts of rape by instrumentation (counts eleven and nineteen), and was

acquitted of the remaining thirty-six counts. Aplt. App. 78. He was sentenced to

five years’ imprisonment for each of the convictions to be served consecutively.

Aplt. App. 78. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the

convictions and sentences on direct appeal. Aplt. App. 78. Mr. Spradling then

sought post-conviction relief in the state district court with new counsel. Aplt.

App. 44-66. He argued, inter alia, that (1) the trial court erred in failing to

require the prosecution to elect the acts upon which each of the charges was

based, and his trial/appellate counsel was ineffective in failing to raise this claim;

and (2) his convictions for counts two and eleven violated his constitutional right

to be protected from double jeopardy, and his trial/appellate counsel was

ineffective in failing to raise this claim. Aplt. App. 57-65. The state district

court denied post-conviction relief, and the OCCA affirmed. Aplt. App. 78-81,

110-16.

      Mr. Spradling’s federal habeas petition was limited to these two claims of

ineffective assistance of counsel. The magistrate judge considered his petition on

the merits and recommended that it be denied. Aplt. App. 117-28. After

addressing Mr. Spradling’s objections to the magistrate judge’s report and

recommendation, the federal district court adopted the report and recommendation

and denied the petition. Aplt. App. 138-40.

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                                     Discussion

      Before reaching the merits of Mr. Spradling’s claims, we must determine

whether he is entitled to a COA. Pursuant to 28 U.S.C. § 2253(c)(2), an inmate

seeking a COA must make “a substantial showing of the denial of a constitutional

right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). He may do so by

“showing that reasonable jurists could debate whether . . . the petition should

have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at 484

(internal quotation marks omitted). To prevail on an ineffective assistance claim,

Mr. Spradling must show (1) deficient performance by counsel and (2) prejudice

from counsel’s error or omission. See Strickland v. Washington, 466 U.S. 668,

687 (1984).

      When a state court has considered a claim on the merits, we must defer to

its resolution unless the state court’s decision “was contrary to, or involved an

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

Supreme Court of the United States,” or “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)(1) & (2). Further, state court findings are

presumed to be correct unless the petitioner rebuts this presumption by clear and

convincing evidence. Id. § 2254(e)(1).

      On appeal, Mr. Spradling argues that the factual determinations underlying

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the OCCA’s rejection of his claims are unreasonable. Aplt. Br. 23, 30. In his

first ground, he relies on Oklahoma’s common law election rule which, subject to

certain exceptions, requires the prosecution to elect the acts upon which rape

charges were based. See Crawford v. State, 688 P.2d 347, 348 (Okla. Crim. App.

1984) (election generally required for a rape charge); Ives v. Boone, 101 F. App’x

274, 293-294 (2004) (election not required in cases involving child abuse). Mr.

Spradling contends that his counsel should have requested that the prosecutor

elect the acts on which the charges were based. Aplt. Br. 10-25. In considering

and rejecting the underlying claims of trial court error, the OCCA explained,

“While the abuse in this case constituted a continuous offense, the State

specifically elected to charge Petitioner with 40 separate and distinct offenses

which it alleged took place during the relevant time period. By so doing, the

State elected to specifically charge Petitioner[] with separate counts for each

alleged offense.” Aplt. App. 115; see Gregg v. State, 844 P.2d 867, 878 (Okla.

Crim. App. 1992) (relying upon same rationale). We are bound by the OCCA’s

interpretation of state law. Johnson v. Mullin, 505 F.3d 1128, 1141-1142 (10th

Cir. 2007) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (“‘[I]t is not

the province of a federal habeas court to reexamine state court determinations on

state-law questions’”). Although Mr. Spradling argues that the OCCA failed to

apply its election rule based upon its unreasonable determination of the facts

(given the prosecution’s reliance on more acts than it chose to charge), this is

                                         -4-
plainly a state-law issue on which we must defer. * Because the OCCA held that

election was not required, it is not reasonably debatable that counsel’s failure to

raise this issue during trial or on appeal was either deficient performance or

prejudicial under Strickland.

      The district court’s resolution of counsel’s failure to pursue the double

jeopardy issue is likewise not reasonably debatable. To the extent Mr. Spradling

argues that his conviction violates the prohibition on multiple punishments found

at Okla. Stat. tit. 21, § 11, the state court’s interpretation of its own laws is not a

cognizable claim for federal habeas relief. Estelle, 502 U.S. at 67-68. Instead,

we are limited to deciding whether his conviction violated the Constitution or

laws of the United States. 28 U.S.C. § 2254(a).

      Count two charged Defendant with touching the victim in a lewd manner

whereas count eleven charged penetration. Mr. Spradling argues that the jury

instructions and the prosecutor’s arguments allowed the jury to convict on both

counts based on a single act. Aplt. Br. 25-26. The OCCA addressed this

argument, stating:

      Petitioner was charged with committing numerous offenses
      against each of the victims over an extended period of time.

      *
         We note that even if this were a factual issue to which § 2254(d)(2)
somehow applied, Mr. Spradling would have to prove that the determination was
unreasonable, which means more than merely debatable. See Wood v. Allen, —S.
Ct. — , 2010 WL 173369 at *6 (2010). At a minimum, this would involve
discussing the uncharged acts in relation to the counts of conviction with citations
to a transcript.

                                       -5-
      Testimony received from the victims included descriptions of
      numerous types of abuse, which included numerous acts of . . .
      penetration, and other acts which consisted [of] touching the
      victims’ private body parts. . . . [T]estimony was voluminous,
      and was elicited to support each of the charges. . . . While it is
      possible that the charge of Lewd Acts could be a lesser
      included offense of Rape by Instrumentation, we find there
      was sufficient evidence presented to support convictions for
      both counts.


Aplt. App. 115.

      We review a habeas petition alleging multiple punishment double jeopardy

only to determine whether the state trial court imposed a sentence greater than the

legislature intended. Missouri v. Hunter, 459 U.S. 359, 368 (1983). “‘[W]e are

bound by a state court’s determination of the legislature’s intent.’” Cummings v.

Evans, 161 F.3d 610, 615 (10th Cir. 1998) (quoting Birr v. Shillinger, 894 F.2d

1160, 1161 (10th Cir. 1990)). Thus, “if the highest state court determines that the

legislature intended to punish separate offenses cumulatively, a federal habeas

court must defer to that conclusion.” Id. at 615. The magistrate judge concluded

that the OCCA rejected Mr. Spradling’s double jeopardy claim “based on the

court’s conclusion that multiple punishments were permitted by the Oklahoma

legislature because sufficient evidence existed in the trial record to support the

separate convictions for both counts.” Aplt. App. 126.

      Mr. Spradling argues that the OCCA merely passed on sufficiency of the

evidence to support the convictions rather than performing an adequate analysis


                                         -6-
of the double jeopardy claim. We defer to the OCCA’s implicit determination

that the legislature intended to punish the charged offenses as separate and

distinct acts. Given such an interpretation of the Oklahoma legislature’s intent, it

is not reasonably debatable that counsel’s failure to raise double jeopardy during

trial or on appeal was objectively unreasonable assistance under Strickland.

      We DENY a COA and DISMISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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