                          UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
                           Byron White United States Courthouse
                                    1823 Stout Street
                                 Denver, Colorado 80257
                                     (303) 844-3157
Patrick J. Fisher, Jr.                                                            Jane B. Howell
       Clerk                                                                    Chief Deputy Clerk

                                       November 19, 2001


       TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
       RE: 01-5107, Payne v. Ward
           Filed on October 30, 2001


              Due to a clerical error, the order and judgment filed in the captioned case
       refers to Terry Lynn Payne as “Terry Lynn Ward,” and “Mr. Ward.”
              A copy of the corrected order and judgment is attached for your
       convenience.


                                                    Sincerely,
                                                    Patrick Fisher, Clerk of Court


                                                    By:
                                                           Deputy Clerk
                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               OCT 30 2001
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 TERRY LYNN PAYNE,

                Petitioner-Appellant,                       No. 01-5107
           v.                                             (N.D. Oklahoma)
 RONALD WARD,                                          (D.C. No. 98-CV-159-H)

                Respondent-Appellee.


                             ORDER AND JUDGMENT             *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered

submitted without oral argument.

       Terry Lynn Payne, a state prisoner proceeding      pro se , requests a certificate

of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas


       This order and judgment is not binding precedent, except under the
       *

doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petition. For the reasons stated below, we deny a COA and dismiss the appeal.

      An Oklahoma jury convicted Mr. Payne of twelve counts of ‘first-degree

rape’ and eleven counts of ‘rape by instrumentation.’ The charges arose from Mr.

Payne’s interactions, on at least twelve different occasions, with a single victim.

The Oklahoma trial court sentenced Mr. Payne to twenty-five, thirty, thirty-five,

or forty years’ imprisonment for each of the twelve first-degree rape convictions

and eight or ten years’ imprisonment for each of the eleven rape by

instrumentation convictions. The trial court ordered the sentences served

consecutively, thereby producing a sentence totaling 502 years. The trial court

also fined Mr. Payne $120,000. Mr. Payne unsuccessfully sought relief on direct

appeal to the Oklahoma Court of Criminal Appeals.

      Mr. Payne next petitioned the United States District Court for the Northern

District of Oklahoma for habeas relief. Mr. Payne contended, as he had on direct

appeal to the Oklahoma Court of Criminal Appeals, that: 1) the Double Jeopardy

Clause bars Oklahoma from punishing Mr. Payne for both first-degree rape and

rape by instrumentation,   see U.S. C ONST . amend. V; 2) Oklahoma produced

insufficient evidence for a jury to properly convict Mr. Payne of first-degree rape,

thereby violating the Due Process Clause,       see U.S. C ONST . amend XIV; and 3) the

Eighth Amendment’s prohibition on “cruel and unusual punishment[]” bars

Oklahoma from imposing a 502 year sentence for the conduct of which the jury


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convicted Mr. Payne, see U.S. C ONST . amend. VIII.

       Noting AEDPA’s “contrary to, or . . . unreasonable application of” and

“based on an unreasonable determination of the facts” standards of review, the

district court denied relief. 28 U.S.C. § 2254(d)(1) and (2). The district court

first noted that Blockburger v. United States    , 284 U.S. 299 (1932), governs

application of the Double Jeopardy Clause.       See United States v. Dixon , 509 U.S.

688, 696 (1993) (“In both the multiple punishment and multiple prosecution

contexts, this Court has concluded that where the two offenses for which the

defendant is punished or tried cannot survive the ‘same-elements’ test, the double

jeopardy bar applies.”).   Blockburger bars punishment, imposed for a single

course of conduct, for two offenses unless each offense contains an element not

contained by the other offense.   See Blockburger , 284 U.S. at 304. Here, the jury

convicted Mr. Payne of first-degree rape and of rape by instrumentation. First-

degree rape, as charged against Mr. Payne, requires “sexual intercourse,” where

“sexual intercourse” is defined as “the actual contact of the sexual organs of a

man and a woman, and an actual penetration into the body of the latter.” Okla.

Stat. tit. 21, § 1111(A)(1); Oklahoma Uniform Jury Instruction – Criminal 480

(1981). Thus, first-degree rape requires proof of penetration by the penis. Rape

by instrumentation, on the other hand, occurs when “any inanimate object or any

part of the body, not amounting to sexual intercourse[,] is used in the carnal


                                             3
knowledge of another person without his or her consent[,] and penetration of the

anus or vagina occurs to that person.” Okla. Stat. tit. 21, § 1111.1. Thus, rape by

instrumentation requires proof of penetration by something other than a male

sexual organ. Since first-degree rape and rape by instrumentation each include an

element not included in the other (penetration by a penis and penetration by

something other than a penis), the Oklahoma Court of Criminal Appeals

reasonably rejected Mr. Payne’s argument that conviction and sentence for both

offenses violates the Double Jeopardy Clause.      Cf. Rhoden v. Rowland , 10 F.3d

1457, 1461-62 (9th Cir. 1993) (“[I]t is well settled that a single transaction can

give rise to distinctive offenses under separate statutes without violating the

Double Jeopardy Clause.”) (internal quotation marks omitted).

       The district court next observed that Mr. Payne’s insufficiency of the

evidence claim required demonstration that the prosecution offered no evidence

from which the jury could have properly concluded that Mr. Payne committed

first-degree rape. As noted above, in Oklahoma, first-degree rape requires,

among other elements, “the actual contact of the sexual organs of a man and a

woman, and an actual penetration into the body of the latter.”   Oklahoma Uniform

Jury Instruction – Criminal 480 (1981) (defining “sexual intercourse,” as required

by Okla. Stat. tit. 21, § 1111(A)(1)). Here, Mr. Payne contested proof of

penetration. The district court noted, however, that the prosecution introduced


                                             4
the victim’s testimony; the victim, a child, testified that Mr. Payne would “stick

his private in mine.” Rec. vol. II, at 336 (testimony of the victim, K.N.H.). Thus

the Oklahoma Court of Criminal Appeals reasonably rejected Mr. Payne’s

argument that the prosecution introduced insufficient evidence to sustain Mr.

Payne’s conviction for first-degree rape.

      Finally, the district court recognized that Eighth Amendment analysis

“focuses on the sentence imposed for each specific crime, not the cumulative

sentence for multiple crimes.”   Hawkins v. Hargett , 200 F.3d 1279, 1284-85 & n.5

(10th Cir. 1999); see also United States v. Schell , 692 F.2d 672, 675 (10th Cir.

1982). Since Mr. Payne admitted that none of his individual sentences exceeded

the statutory maximum, the Oklahoma Court of Criminal Appeals reasonably

rejected Mr. Payne’s argument that the 502 year sentence violates the Eighth

Amendment prohibition upon “cruel and unusual punishment[].”

      Mr. Payne now seeks a COA only in regard to his first and second claims;

Mr. Payne no longer presses the Eighth Amendment claim. Pursuant to       Haines v.

Kerner , 404 U.S. 519, 520-21 (1972) ( per curiam ), we liberally construe Mr.

Payne’s remaining allegations. To be entitled to a COA, Mr. Payne must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Mr. Payne may make this showing by demonstrating that the issues

he raises are debatable among jurists, that a court could resolve the issues


                                            5
differently, or that the questions presented deserve further proceedings.   See

Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).

       Having reviewed Mr. Payne’s request for a COA, his appellate brief, the

district court’s order, and the appellate record, we conclude that Mr. Payne has

failed to make the required showing for a COA. Accordingly, and for

substantially the same reasons set forth in the district court’s June 12, 2001 order,

we DENY Mr. Payne’s motion for a COA and DISMISS his appeal.



                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 Circuit Judge




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