                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            August 30, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
WILL G. WALKER,

      Petitioner - Appellant,

v.                                                           No. 16-5056
                                                 (D.C. No. 4:13-CV-00233-GKF-PJC)
JOE M. ALLBAUGH,                                             (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Proceeding pro se,1 Oklahoma state prisoner Will Walker seeks a certificate of

appealability (COA) to appeal the district court’s denial of his petition for a writ of

habeas corpus filed under 28 U.S.C. § 2254. We deny his request for a COA and

dismiss this matter.

      An Oklahoma jury convicted Walker of first degree robbery2 stemming from a

June 2008 incident during which he attacked a convenience store clerk and stole $300


      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         We liberally construe Walker’s pro se filings, but it’s not our role to act as
his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
       2
         Under Oklahoma law, a defendant commits first degree robbery “when, in the
course of committing the theft, the defendant: 1. inflicts serious bodily injury upon
the person; 2. threatens a person with immediate serious bodily injury;
and several boxes of cigars. The trial court sentenced him to 24 years in prison.

Walker appealed his sentence to the Oklahoma Court of Criminal Appeals (OCCA),

arguing, in relevant part, that the evidence was insufficient to support the jury’s

verdict of first degree robbery and, relatedly, that the trial court erroneously

instructed the jury on the applicable law governing first degree robbery and the lesser

included offense of second degree robbery.

      Specifically, although Walker conceded that the trial court correctly instructed

the jury regarding the elements of first degree robbery, he argued that the court erred

when it provided the jury with an instruction that defined an element of an older

version of the first-degree-robbery statute; namely, the instruction defined “fear of

immediate injury” instead of “fear of immediate serious bodily injury.” R. vol. 1,

136-37 (emphasis added). He insisted that this “diluted the [fear] element of first

degree robbery by incorrectly advising the jury that the fear of any immediate injury

was all that was required to support a conviction for first degree robbery.” Id. at 137.

Likewise, he argued that by giving the jury an outdated instruction that defined “fear”

for purposes of second degree robbery as “[f]ear of unlawful future injury” instead of

“fear of unlawful injury, immediate or future,” the trial court “made it all but

impossible for [the jury] to find [Walker] guilty of second degree robbery.” Id. at

137-38 & n.11 (emphasis added). The OCCA denied Walker relief.



3. intentionally puts a person in fear of immediate serious bodily injury; or
4. commits or threatens to commit a felony upon the person.” Okla. Stat. tit. 21,
§ 797. A robbery accomplished in any other manner is second degree robbery. Id.
                                            2
      Walker then filed the underlying federal habeas petition in which—as relevant

to this appeal—he reasserted his insufficiency-of-the-evidence and erroneous-jury-

instructions claims. He also filed a motion asking the district court to stay his habeas

action and certify a question to the OCCA regarding the meaning of “serious bodily

injury” as used in Oklahoma’s first-degree-robbery statute. The district court denied

both his petition and his motion.

      Walker seeks to appeal the district court’s order, but he must first obtain a

COA. 28 U.S.C. § 2253(c)(1)(A). We will grant him a COA “only if [he] has made a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make

this substantial showing, Walker must show “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)

(citation and internal quotation marks omitted).

I.    Insufficiency of the Evidence

      Walker argues that the evidence was insufficient to sustain a conviction for

first degree robbery, thus violating his Fourteenth Amendment due process rights.

Specifically, he explains that the evidence at best supports a conviction for second

degree robbery—not first—because he didn’t possess “any mechanism of injury”

such as “a knife or gun,” Aplt. Br. 13-14, and thus couldn’t have “intentionally put[]

a person in fear of immediate serious bodily injury,” Okla. Stat. tit. 21, § 797

(emphasis added).

                                           3
       A criminal conviction doesn’t violate a defendant’s due process rights if, “after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On direct appeal, the OCCA

considered Walker’s insufficiency-of-the-evidence argument, but denied him relief,

explaining that “taking the evidence in the light most favorable to the State[,] any

rational trier of fact could find beyond a reasonable doubt that Walker intentionally

put the victim in fear of immediate serious bodily injury” given the victim’s

testimony that “Walker hit, punched, choked and beat [the victim], that his breath

was gone, . . . that he was afraid for his life,” and that Walker threatened the victim’s

life by saying “he was ‘going down’ if he didn’t cooperate.” R. vol. 1, 163 & n.1.

And the district court concluded that “the OCCA’s decision was not contrary to, nor

did it involve an unreasonable application of, clearly established federal law”

because, based on the victim’s testimony, “a reasonable jury could have found that

[Walker] . . . intentionally put a person in fear of immediate serious bodily injury.”

Id. at 294.

       In light of the victim’s testimony, we conclude that no reasonable jurist could

debate the district court’s resolution of this claim.

II.    Jury Instructions

       Next, Walker argues the jury instructions violated his Fourteenth Amendment

due process rights. He asserts that, when “looked at as a whole,” the instructions

were “fundamentally unfair” because they misled the jury with respect to the

                                             4
elements of first and second degree robbery. Aplt. Br. 11. Had the jury been properly

instructed, he insists, the jury would have convicted him of only the lesser offense.

      To obtain habeas relief on his jury-instruction claim, Walker has to show that

the instructions were “so fundamentally unfair as to deprive [him] of a fair trial

and . . . due process of law.” Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir.

1997) (citation omitted); see Estelle v. McGuire, 502 U.S. 62, 72 (1991) (explaining

that federal habeas courts should consider, “in the context of the instructions as a

whole,” “whether the ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process” (citation omitted)).

      Here, the OCCA agreed that the jury instructions contained a definition

applicable to an older version of the first-degree–robbery statute—i.e., that the

district court erroneously provided a definition of “fear of immediate injury” rather

than “fear of immediate serious bodily injury”—but concluded that Walker couldn’t

show he was prejudiced by the outdated definition instruction because “[b]oth parties

emphasized in argument that jurors must find Walker intended to put the victim in

immediate fear of serious bodily injury,” and “[s]ufficient evidence supported the

jury’s conclusion that Walker did so.” R. vol. 1, 163 n.2. Moreover, the court found

that any error with respect to the definition pertaining to second degree robbery was

moot because “evidence support[ed] Walker’s conviction for the charged crime and

jurors did not find Walker guilty of the lesser included offense.” Id. at 174.

      In a well-reasoned discussion spanning five pages, the district court agreed

with the OCCA. The district court explained that, considering the instructions as a

                                            5
whole, Walker’s trial wasn’t fundamentally unfair because “the trial court properly

instructed the jury on the elements of First and Second Degree Robbery.” Id. at 297.

And although the instructions failed to define “fear of immediate serious bodily

injury,” and erroneously defined “fear” for purposes of second degree robbery as fear

of “unlawful future injury,” the court concluded that Walker wasn’t prejudiced

because, as discussed above, the evidence was nonetheless sufficient to support the

conviction for first degree robbery. Id. at 295, 297 (emphasis added).

      In light of the district court’s well-reasoned opinion, we conclude that no

reasonable jurist could debate the district court’s resolution of this claim.3

      Accordingly, we deny Walker’s request for a COA and dismiss this matter.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      3
         We also agree with the district court that, in light of its disposition of
Walker’s sufficiency-of-the-evidence and jury-instructions claims, Walker’s
proffered question to be certified to the OCCA “is not dispositive of [his] claims as
raised in this habeas case.” R. vol. 1, 290; see Kan. Judicial Review v. Stout, 519
F.3d 1107, 1119 (10th Cir. 2008) (noting that the court will only certify questions
that are both unsettled and dispositive). Specifically, even if the OCCA answered the
proposed certified question in the affirmative as Walker urges—i.e., even if the
OCCA answered that “serious bodily injury” did have the same meaning in
September 2009 as it did when the OCCA decided Owens v. State, 229 P.3d 1261
(Okla. Crim. App. 2010)—Walker wouldn’t be entitled to federal habeas relief
because no reasonable jurist could debate that the evidence sufficiently established
that Walker intentionally put the convenience store clerk in fear of immediate
“serious bodily injury,” as that term is defined in Owens. See 229 P.3d at 1264-65.
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