                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 13, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 RODNEY HUNTER,

               Petitioner - Appellant,                  No. 10-6046
        v.                                            (W.D. Oklahoma)
 JUSTIN JONES, Director,                        (D.C. No. 5:09-CV-00567-F)

               Respondent - Appellee.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


       Rodney Renee Hunter, an Oklahoma state prisoner proceeding pro se, seeks

a certificate of appealability (COA) to appeal the denial of his application under

28 U.S.C. § 2254 for habeas relief. See 28 U.S.C. § 2253(c) (requiring COA to

appeal denial of application). Because no reasonable jurist could debate whether

Mr. Hunter’s application ought to have been granted, we deny his request for a

COA.

I.     BACKGROUND

       Mr. Hunter was convicted by a jury in Oklahoma state court of distribution

of a controlled substance (Xanax) after two or more prior felony convictions. He

was sentenced to 20 years’ imprisonment.
      Christopher Rush, a convenience-store employee, was the principal witness

at Mr. Hunter’s trial. He testified that when Mr. Hunter was in the store, he asked

Mr. Hunter for some Xanax. Mr. Hunter left to obtain the drug, but when a police

officer entered the store, Rush called Mr. Hunter to tell him not to return until the

officer left. About 30 minutes after his first conversation with Mr. Hunter, Rush

went out to the store parking lot to meet him at Mr. Hunter’s vehicle. Mr. Hunter

gave Rush a package with four Xanax pills. Rush later pleaded guilty to

possession of a controlled substance.

      The officer corroborated much of Rush’s account. He testified that he had

just left the convenience store after buying a snack when a police-department

dispatcher who happened to be in the store approached him at his car. She told

him that she had overheard Rush say to someone on the phone, “[H]e’s about to

leave, when he leaves you can come up here.” Br. of Aplee. at 2, Hunter v. State,

No. F-2008-700 (Okla. Crim. App. Dec. 19, 2008). Deciding to investigate, the

officer pulled into an alley from which he could observe the store through

binoculars. He saw Mr. Hunter arrive in his vehicle, Rush approach the vehicle,

and Mr. Hunter apparently hand something to Rush. After the transaction, the

officer questioned Rush about what Mr. Hunter had handed him. Rush gave the

officer a cigarette pack containing Xanax pills.

      Michael Lynn Williams also testified for the state. He said that in an

unrelated transaction Mr. Hunter had sold him methamphetamine. The

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methamphetamine sale took place after Mr. Hunter gave Xanax to Rush, but

Mr. Hunter was convicted and sentenced for distribution of methamphetamine

before he was tried on the Xanax transaction.

      Mr. Hunter appealed his conviction to the Oklahoma Court of Criminal

Appeals (OCCA), arguing four main claims: (1) that he was denied his right to a

fair trial by the introduction of evidence of his methamphetamine crime; (2) that

there were various prejudicial errors in the sentencing phase of his trial; (3) that

his trial counsel’s failure to object to these sentencing-phase errors constituted

ineffective assistance of counsel; and (4) that he received an excessive sentence.

The OCCA held that William’s testimony about the methamphetamine sale was

inadmissible. Because of this error and various errors in the sentencing phase, the

OCCA reduced Mr. Hunter’s sentence from 20 years’ imprisonment to six years’

imprisonment, the minimum possible sentence for distribution of a controlled

substance after two or more prior felony convictions.

      On May 29, 2009, Mr. Hunter filed his § 2254 application in the United

States District Court for the Western District of Oklahoma. It asserted a single

ground for relief: that the state’s introduction of evidence of his prior crime

violated his constitutional right to a fair trial. He claimed that he was entitled to

habeas relief because the OCCA failed to reverse his conviction. In response, the

magistrate judge’s report and recommendation stated:




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      The OCCA’s implicit finding that the evidence was sufficient to
      support [Mr. Hunter’s] conviction is neither contrary to, nor an
      unreasonable application of Supreme Court law. The introduction of
      the other crimes evidence did not determine the outcome of the jury’s
      finding of guilt in light of the strength of the other evidence, and the
      OCCA modified [Mr. Hunter’s] sentence to the minimum sentence.
      [Mr. Hunter] was not, therefore, denied the fundamental fairness that
      is the essence of due process.

R., Vol. 1 at 9 (footnote omitted). The district court adopted the magistrate

judge’s recommendation and denied relief.

      Mr. Hunter now seeks a COA from this court. He asserts four challenges:

(1) that he was denied a fair trial by the introduction of evidence of a past crime;

(2) that numerous sentencing-stage errors deprived him of a fair sentencing

determination; (3) that his counsel’s failure to object to misconduct at the

sentencing stage constituted ineffective assistance; and (4) that he received an

excessive sentence.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing 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) (internal quotation marks omitted). In other words, the applicant must


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show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      We summarily dispose of three of Mr. Hunter’s claims: (1) that

sentencing-stage errors deprived him of a fair sentencing determination, (2) that

his counsel provided ineffective assistance during the sentencing stage, and (3)

that his sentence was excessive. Because he failed to raise these issues in his §

2254 application to the district court, we decline to address them. See Rhine v.

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999) (“[W]e will generally not consider

issues raised on appeal that were not first presented to the district court.”). In any

event, the OCCA resentenced Mr. Hunter to the minimum permissible term for his

offense, so ultimately no errors at sentencing could have prejudiced him.

      Mr. Hunter’s remaining claim is that the admission of evidence of his

methamphetamine offense rendered his trial unfair. The OCCA did not express a

view on whether the error denied Mr. Hunter a fair trial; once it found error, all it

did was reduce the sentence. We therefore have no state-court decision to defer

to under 28 U.S.C. § 2254(d).

      Even on de novo review, however, the issue is not difficult. The improper

admission of evidence does not render a trial fundamentally unfair if there is

otherwise overwhelming evidence of guilt. See Bland v. Sirmons, 459 F.3d 999,

1025 (10th Cir. 2006) (improper closing argument did not deny defendant a fair

trial in light of overwhelming evidence of guilt); United States v. Caballero, 277

                                          -5-
F.3d 1235, 1244–45 (10th Cir. 2002) (improper reference to defendant’s prior

conviction not ground for mistrial when there was other overwhelming evidence

of guilt). In light of the other overwhelming evidence of Mr. Hunter’s guilt

presented at his trial, no reasonable jurist could say that he was denied a fair trial.

Moreover, Mr. Hunter has presented no authority that the introduction of the

methamphetamine evidence was improper under the federal constitution, even if it

violated a state rule of evidence.

      III.   CONCLUSION

      We DENY a COA and DISMISS the appeal. We GRANT Mr. Hunter’s

motion to proceed in forma pauperis.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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