                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                    February 22, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 ALBERTO HERNA ND EZ,

              Petitioner-A ppellant,                     No. 06-6306
       v.                                             (W .D. Oklahoma)
 M IK E ADDISON, W arden,                          (D.C. No. 06-CV-141-R)

              Respondent-Appellee.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Alberto Hernandez, proceeding pro se, seeks a certificate of appealability

(“COA”) to enable him to appeal the district court’s denial of the habeas petition

he filed pursuant to 28 U.S.C. § 2254. 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). M r. Hernandez also seeks leave to proceed in

form a pauperis (“IFP”). In his § 2254 petition, M r. Hernandez raises nine

contentions: (1) Oklahoma’s construction of the child abuse murder statute, Okla.

Stat. tit. 21 § 701.7(C), which does not require express or implied malice, is a

substantive law violation; (2) the trial court erred when it admitted his videotaped

statement as evidence; (3) the State failed to demonstrate that M r. Hernandez’s
waiver of his M iranda rights was knowing and voluntary; (4) the trial court’s

admission of a presumptive blood test violated his right to due process; (5) the

trial court improperly admitted evidence of other bad acts, denying his right to a

fair trial; (6) the trial court’s failure to instruct on lesser included offenses

deprived him of a fair trial; (7) the trial court erred when it failed to answer a jury

question regarding the length of time served for a life sentence, in violation of his

Eighth and Fourteenth Amendment rights; (8) cumulative error deprived him of a

fundamentally fair trial; and (9) ineffective assistance of trial and appellate

counsel. For substantially the same reasons set forth by the magistrate judge in

his thorough report and recommendation, we reject M r. Hernandez’s application

for a COA, deny his motion to proceed IFP, and dismiss this matter.



                                   I. BACKGROUND

       M r. Hernandez was convicted of child abuse murder in Oklahoma state

court and received a sentence of life without parole. The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed his conviction on direct appeal and denied

his application for post-conviction relief. He then filed this § 2254 action. The

magistrate judge, in a 39-page report and recommendation, recommended that the

district court deny the petition. The district court reviewed and rejected M r.

Hernandez’s objections to the report and recommendation, adopted the report and

recommendation, and denied M r. H ernandez’s application for a COA.

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                                  II. DISCUSSION

      In order to obtain a COA, M r. Hernandez must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to do so,

M r. Hernandez “must show 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.” M iller-El

v. Cockrell, 537 U.S. 322, 336 (2003). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that [the] petitioner will not prevail.” Id. at 338.

      Here, for substantially the same reasons set forth in the district court’s

order and magistrate judge’s report and recommendation, we conclude that M r.

Hernandez is not entitled to a COA. First, Oklahoma courts have construed

Oklahoma’s child abuse murder statute, Okla. Stat. tit. 21 § 701.7(C), as

analogous to the crime of felony murder. “Felony murder is a crime of general

intent, and proof of the underlying felony is all that is needed to prove to intent

necessary for a felony murder conviction.” Rec. doc. 16, at 6 (M ag. Judge’s

Report and Rec. filed July 31, 2006). Similarly, proof of the underlying child

abuse is required to obtain a child abuse murder conviction. Id. W e also agree

that the child abuse murder statute provides fair warning of the conduct and

mental state require, thus defeating M r. Hernandez’s due process claims.




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      W e also reject M r. Hernandez’s second and third contentions that his post-

M iranda videotaped statement resulted from an illegal arrest and that his waiver

of his M iranda rights was not knowing and voluntary. W e hold that the O CCA’s

determination that M r. Hernandez was not unlawfully arrested and that his waiver

of his M iranda rights w as knowing and voluntary were not unreasonable

applications of clearly established federal law.

      M r. Hernandez’s fourth, fifth, sixth, and seventh challenges raise questions

of state law. See Estelle v. M cGuire, 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.”); Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002)

(“Generally speaking, a state court’s misapplication of its own evidentiary rules .

. . is insufficient to grant habeas relief.”). As the magistrate judge observed, the

alleged errors were not so grossly prejudicial that they fatally infected the trial

and denied fundamental fairness; without such fundamental unfairness, alleged or

actual, state law errors cannot implicate federal rights. M r. Hernandez’s eighth

claim of cumulative error also fails, because this analysis “does not apply to the

cumulative effect of non-errors.” M oore v. Reynolds, 153 F.3d 1086, 1113 (10th

Cir. 1998). Finally, M r. Hernandez’s ninth claim of ineffective assistance of trial

and appellate counsel, w hich stems from his allegedly illegal arrest, also fails. A s

established above, the OCCA concluded that “regardless of the performance of

his counsel, [M r. Hernandez] has not established that his arrest was unlawful or


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illegal. M oreover, even if counsel had performed as [M r. Hernandez] thinks they

should have, he has not established that the outcome of his trial and appeal would

have or should have been different.” Rec. doc. 14, Ex. E, Order Affirming Denial

of A pplication for Post-C onviction Relief, at 2-3 (filed Jan. 31, 2006). Thus, w e

hold that the OCCA’s conclusion that M r. Hernandez’s trial and appellate counsel

were not ineffective is not reasonably debatable.

                                 III. CONCLUSION

      Based on our review of the record, the magistrate judge’s report and

recommendation, the district court’s order, and M r. Hernandez’s submissions to

this court, we are not persuaded jurists of reason would disagree with the district

court’s disposition of his petition. Accordingly, we DENY his request for a COA ,

DENY his motion to proceed IFP, and DISM ISS the matter.


                                 Entered for the Court,
                                 ELISABETH A. SHUM AKER, Clerk



                                 By:
                                       Deputy Clerk




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