                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                         June 12, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 VERNON NEAL ALLEN,
              Petitioner-Appellant,                      No. 05-6307
 v.                                              (D.C. No. CIV-04-1535-M )
 RON W ARD, Director of the                             (W . D. Okla.)
 Oklahoma Department of Corrections,
              Respondent-Appellee.



                                      OR DER


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.




      Petitioner shot and killed two brothers, Robert and David M artinez, on the

evening of M arch 19, 2000. At the time of the shooting, David M artinez was

living with his girlfriend, Tracie M unoz, next door to Petitioner. During the

evening, Petitioner and his next-door neighbors crossed paths outdoors.

Petitioner called, “H ey good-looking,” over to Tracie, w hich upset David

M artinez. R eport and R ecommendation, 3 (W .D. Okla., July 26, 2005). An

altercation broke out between the Petitioner and the M artinez brothers, resulting

in Petitioner shooting and killing them.

      Petitioner, a state prisoner appearing pro se, seeks habeas relief pursuant to

28 U.S.C. § 2254. Petitioner was convicted in Oklahoma state court of First
Degree M urder in the death of Robert M artinez (Count I) and First Degree

M anslaughter in the death of David M artinez (Count II). Petitioner was sentenced

to life imprisonment on Count I and a term of four years on Count II.

      Petitioner appealed his conviction to the Oklahoma Court of Criminal

Appeals, which affirmed his conviction. Petitioner then sought post-conviction

relief in the state district court, alleging insufficiency of the evidence and

ineffective assistance of counsel. The District Court of Oklahoma County, State

of Oklahoma, vacated the conviction on Count I, M urder in the First Degree, and

granted Petitioner a new trial on that count. The State of Oklahoma then appealed

the district court order to the Oklahoma Court of Criminal Appeals, which

vacated the district court’s grant of post-conviction relief.

      In this habeas action, Petitioner raises three grounds for relief: 1) the state

presented insufficient evidence to support Petitioner’s conviction of Count I; 2)

trial counsel was ineffective for failing to request a lesser-included-offense

instruction and appellate counsel was ineffective for failing to raise that issue on

direct appeal; 3) trial counsel was ineffective in agreeing to the exclusion of

certain evidence at trial and in failing to take remedial steps concerning a

sleeping juror. The District Court for the W estern District of Oklahoma, adopting

the recommendation of the magistrate judge, denied the petition and did not grant

Petitioner a certificate of appealability.

      In Petitioner’s first ground for relief, he argues that it was inconsistent for

                                             -2-
the jury to find that he had killed the first victim, Robert M artinez, with malice

aforethought but had acted in the heat of passion when he killed the second

victim, David M artinez. However, the first-degree murder conviction is

supported by sufficient evidence. Petitioner explained to the police that “he knew

Robert M artinez had not been the brother who had kicked him on the ground, yet

he fired, shooting Robert M artinez in the face and back,” whereas Petitioner

described his state of mind when faced with David M artinez as having “lost it”

and “went crazy.” Report and Recommendation, supra, at 11.

      In Petitioner’s second ground for relief, he contends that he received

ineffective assistance of appellate counsel because counsel failed to raise an

ineffective assistance of trial counsel claim on direct appeal. Petitioner raised

this claim at the state level. Report and Recommendation, supra, at 12. He

contends that trial counsel was ineffective for not requesting a lesser-included-

offense instruction on M anslaughter by Resisting Criminal Attempt as to Count I

in the death of Robert M artinez. The magistrate judge, applying the Strickland v.

Washington, 466 U.S. 668 (1984), test, stated that “Petitioner cannot demonstrate

that but for counsel’s failure to request an instruction on M anslaughter by

Resisting Criminal Attempt the result of the proceedings would have been

different.” Report and Recommendation, supra, at 15. The magistrate judge

considered Petitioner’s ineffective assistance of trial and appellate counsel claims

to be “without merit.” Id. at 18.

                                          -3-
         In his third ground for relief, Petitioner raises additional claims of

ineffective assistance of trial counsel, which he also pursued in his direct appeal.

He claims that trial counsel erroneously agreed to redact a portion of Petitioner’s

videotaped interview with police where he mentioned that he knew of the

M artinez brothers’ gang involvement. Petitioner also claims that trial counsel

failed to take appropriate remedial steps when a juror allegedly fell asleep during

trial. The magistrate judge reviewed the record as to these claims and determined

that the allegations of prejudice were insufficient to meet the Strickland test. Id.

at 19-20. Specifically, the jury was presented with additional evidence of the

M artinez brothers’ criminal activity apart from Petitioner’s videotaped discussion

and there was no trial record that trial counsel was ever made aware of a sleeping

juror.

         Petitioner now seeks from this court a certificate of appealability. The

issues he raises on appeal are identical to those brought before the district court.

To grant a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).

To meet this burden, Petitioner 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.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

                                            -4-
      W e have carefully reviewed Petitioner’s brief, the magistrate judge’s

recommendations, the district court’s disposition, and the record on appeal.

Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the same reasons set forth by the magistrate judge in its Report and

Recommendation of July 26, 2005, and the district court’s orders of August 18,

2005, and September 26, 2005, we cannot say “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner.” Id.

      Accordingly, we D EN Y Petitioner’s request for a certificate of

appealability and DISM ISS the appeal.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




                                          -5-
