                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      June 15, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


 LA RR Y LY NN CO LLINS,

                 Petitioner-A ppellant,                 No. 05-6384
          v.                                          (W .D. of Okla.)
 CHARLES RAY, W arden,                            (D.C. No. CV-04-289-R)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Petitioner-Appellant Larry Collins, a state prisoner appearing pro se, seeks

a Certificate of Appealability (COA) to appeal the denial of his writ of habeas

corpus petition, filed pursuant to 28 U.S.C. § 2254. Because Collins has not

m ade a substantial show ing of the denial of a constitutional right, we DENY a

COA and DISM ISS the appeal.




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   I. Background

      Collins was convicted of conspiracy to manufacture a controlled dangerous

substance (methamphetamine) and unlaw ful possession of anhydrous ammonia in

an unauthorized container. After exhausting his state court remedies, Collins

filed a habeas petition in federal district court. Collins asserted four claims for

habeas relief: (1) his two convictions violated the Fifth Amendment’s double

jeopardy prohibition; (2) limitations placed on cross-examination at trial violated

his Sixth Amendment right to confrontation; (3) his co-defendant’s testimony,

without corroboration, was insufficient to convict him; and (4) the prosecutor

comm itted prejudicial error by asking the jury to send a message to other

potential offenders, improperly appealing to societal alarm. 1

      The district court, adopting a magistrate judge’s recommendation, denied

Collins’s petition for writ of habeas corpus and petition to proceed in forma

pauperis. Collins now seeks to obtain a COA from this court, see 28 U.S.C.

§ 2253(c)(1)(A), based on the same grounds that w ere denied by the district court.

                                     II. Analysis

      This court may issue a CO A “only if the applicant has made a substantial

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

a district court has rejected the constitutional claims on the merits . . . [t]he

      1
       Collins also asserted several claims under Oklahoma state law. Because
habeas relief can only be obtained on federal claims, see Estelle v. M cGuire, 502
U.S. 62, 67 (1991), we do not consider his state-based claims in this proceeding.

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petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. M cDaniel,

529 U.S. 473, 484 (2000). In conducting our analysis, we are limited to “an

overview of the claims in the habeas petition and a general assessment of their

merits” rather than “full consideration of the factual or legal bases adduced in

support of the claims.” M iller-El v. Cockrell, 537 U .S. 322, 336 (2003). Because

Collins appears pro se, we construe his claims liberally. See Cum mings v. Evans,

161 F.3d 610, 613 (10th Cir. 1998).

A. Double Jeopardy

      Collins w as convicted of two offenses: (1) conspiracy to manufacture

methamphetamine, and (2) possession of anhydrous ammonia, a precursor

chemical used in manufacturing methamphetamine. Collins argues that the

offense of possession of anhydrous ammonia amounted to the “overt act”

necessary for establishing conspiracy and therefore constituted a lesser included

offense, which could not be the basis of a separate criminal conviction and

sentence without violating principles of double jeopardy.

      “[W]here the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied [for double jeopardy] is whether each

provision requires proof of an additional fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). Under Oklahoma law ,

the crime of conspiracy requires four elements: (1) an agreement by two or more

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persons (2) to commit the manufacturing of methamphetamine, where (3) the

defendant was a party to the agreement, and where (4) one or more of the parties

performed an overt act subsequent to the formation of the agreement. See Okla.

Uniform Jury Instructions–Criminal (2d) No. 2-17; see also R. at 46 (Instruction

No. 5).

      In contrast, to prove possession of anhydrous ammonia in an unauthorized

container, the state must demonstrate five elements: (1) the defendant knowingly

or intentionally (2) possessed (3) anhydrous ammonia in an unauthorized

container (4) with the intent to use the anhydrous ammonia to manufacture (5) the

controlled dangerous substance of methamphetamine. See Okla. Uniform Jury

Instructions–Criminal (2d) No. 6-2B; see also R. at 49 (Instruction No. 8).

      The Oklahoma Court of Criminal Appeals (O CCA) has held that a

“conspiracy to commit an unlawful act constitutes an independent crime,

complete in itself and distinct from the unlawful act contemplated.” Hawkins v.

State, 46 P.3d 139, 149 (Okla. Crim. App. 2002). On direct appeal in this case,

the OCCA determined that the possession charge did not merge with the crime of

conspiracy and that Collins’s convictions on both counts did not violate double

jeopardy. See R. Ex. 3 at 2 (citing Burns v. State, 117 P.2d 155, 157 (Okla. Crim.

App. 1941).

      On habeas review , because this claim was adjudicated on the merits in state

court, the district court was required to deny relief unless the petitioner’s claim

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(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme

Court, or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of evidence presented in the state court

proceeding. 28 U.S.C. § 2254(d).

      The district court concluded that, because each of the two crimes required

proof of facts that the other did not, there was no double jeopardy violation. In

any event, it concluded, the state court’s determination did not constitute a

contrary or unreasonable application of Blockburger. W e agree with the district

court’s assessment and find its conclusions to be undebatable on habeas review .

      W e therefore deny Collins’s request for a COA on this issue.

B. Restriction on C ross-Exam ination

      Collins next challenges an evidentiary ruling that placed restrictions on the

cross-examination of his co-defendant who testified at trial. Specifically, Collins

argues he should have been allowed to question his co-defendant about prior

adjudications as a juvenile offender. The trial court disallowed this line of

questioning as improper impeachment. Collins nevertheless contends on appeal

that he should have been allowed to delve into the co-defendant’s criminal history

in order to demonstrate the witness w as not a first-time offender. Collins’s theory

was that his co-defendant’s plea agreement was favorable for a repeat offender,

thus indicating he had been offered a deal in order to testify. Thus, he argues,

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this limitation on the scope of cross-examination deprived him of his Sixth

Amendment right to confrontation.

      In determining what evidence to admit, “trial judges retain wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986). The Confrontation Clause does not guarantee “cross-examination

that is effective in whatever way, and to whatever extent, the defendant might

wish.” Id. To demonstrate a constitutional violation, a petitioner must show

“that the evidence, if admitted, would have created reasonable doubt that did not

exist without the evidence.” Patton v. M ullin, 425 F.3d 788, 797 (10th Cir. 2005)

(citing United States v. Valenzuela-Beroal, 458 U.S. 858, 868 (1982)).

      Because the O CCA did not specifically address this issue, the district court

considered it de novo. The district court concluded Collins had failed to show a

constitutional violation, reasoning that Collins’s counsel had ample opportunity to

cross-examine his co-defendant as to his truthfulness and motive for testifying,

which included an inquiry into the plea agreement he reached with the

prosecution. In other words, the district court found the line of questioning

sought by Collins to be repetitive and overly prejudicial. It therefore found no

abuse of discretion by the district court.

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      W e agree. Collins has failed to show how the evidence, if admitted, would

have created a reasonable doubt not otherwise created by the permitted

questioning on the plea agreement. The jury had already heard testimony

demonstrating the state’s leniency toward Collins’s co-defendant in exchange for

testimony against Collins and was able to weigh that information along with other

factors bearing on the witness’s credibility. Thus, questioning the witness about

prior bad acts could further no legitimate purpose. The only added value of this

questioning to Collins w as as improper impeachment of the w itness’s character.

      Collins has failed to meet his burden of making a substantial showing of

the denial of a constitutional right, and we deny a COA on this issue.

C. Sufficiency of Evidence

      Collins next claims he was denied a fair trial on a theory that the

uncorroborated testimony of his co-defendant was insufficient to sustain the

conviction. 2 The district court liberally construed this claim as raising a federal

constitutional sufficiency claim and properly exercised its prerogative under 28

U.S.C. § 2254(b)(2) to deny Collins’s claim on the merits.

      “[T]he relevant question is whether, 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,



      2
        Relatedly, Collins argued below that the trial court should have instructed
the jury on corroboration, but he does not renew this argument on appeal.

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443 U.S. 307, 319 (1979) (emphasis in original). The Jackson standard gives

latitude to the trier of fact to resolve conflicts in testimony, to weigh evidence,

and to draw reasonable inferences from facts. Id. In applying this standard, the

court “may not weigh conflicting evidence nor consider the credibility of

witnesses” but must “accept the jury’s resolution of the evidence as long as it is

within the bounds of reason.” M esser v. Roberts, 74 F.3d 1009, 1013 (10th Cir.

1996). M oreover, “[t]he Constitution does not prohibit convictions based

primarily on accomplice testimony.” Foster v. Ward, 182 F.3d 1177, 1193 (10th

Cir. 1999).

      For substantially the same reasons as provided by the court below, we

conclude that Collins has failed to make a sufficient showing that the jury’s

decision was outside “the bounds of reason.” The jury had ample opportunity to

assess the credibility of Collins’s co-defendant when he testified. M oreover, the

jurors need not have relied on his testimony alone, because they were presented

with additional evidence from law enforcement, including the following:

(1) Collins and his co-defendant were found walking along a rural highway late at

night in a remote area near anhydrous ammonia tanks; (2) there was freshly

leaking amm onia on the ground beside the tanks; (3) officers discovered a

thermos one-tenth of a mile away containing three inches of a liquid that they

identified as anhydrous ammonia; (4) while the two defendants were being

questioned, the girlfriend of Collins’s co-defendant approached them, and the

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officers observed two bottles of Heet and a bicycle inner tube in the back seat of

the vehicle; (5) officers found portions of a bicycle inner tube near the ammonia

tanks and sections of inner tube in Collins’s co-defendant’s coat pockets; (6) the

process of manufacturing methamphetamine, according to an investigator from

the district attorney’s office, includes anhydrous ammonia and a gasoline additive

such as Heet; and (7) anhydrous ammonia was required by law to be stored in an

authorized pressure vessel.

       In light of this testimony, we conclude enough evidence was presented on

the essential elements of the crimes charged that a rational jury could find Collins

guilty beyond a reasonable doubt. Accordingly, we find no basis to grant COA on

this issue.

D. Prosecutor’s Com m ents

       Finally, Collins claims the prosecutor prejudiced the jury in his closing

argument when he made the follow ing statements:

       The punishment for each one of these offenses is seven years to life.
       That’s a wide range. You get to look at the evidence and decide based
       on your opinion w hat you think is appropriate for that sentence. . . .
       The defendant was going to give these people a hundred dollars to drive
       him over here and steal anhydrous ammonia. The defendant is the
       person responsible for manufacturing methamphetamine. The defendant
       is the person who makes someone like [his co-defendant], a seventeen-
       year-old boy, in a position where he’s . . . using drugs and having to go
       to some drug treatment program at seventeen years old. The defendant
       is the person who puts these people in this position by stealing
       anhydrous ammonia from farmers in Jefferson County to be used to
       make drugs to infiltrate our society with those drugs. You tell this



                                      -9-
      defendant that we do not like that. You tell this defendant he cannot do
      that and get away with it.

Tr. at 144–45 (emphasis added). Collins argues these statements represent an

appeal to “societal alarm”— i.e., that the jury was implicitly asked to send a

message to other similarly situated potential offenders by recommending that

Collins receive a harsh sentence.

      Habeas claims of prosecutorial misconduct are reviewed only for violation

of due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). Collins

must show that the prosecutor’s remarks “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.” Id. W e have held that

“even [a]n improper appeal to societal alarm typically does not amount to a denial

of due process.” Duckett v. M ullin, 306 F.3d 982, 990 (10th Cir. 2002) (internal

quotations omitted); see also Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th Cir.

1994) (holding “improper appeals to societal alarm” and requests for “vengeance

for the community” do not amount to denial of due process).

      The OCCA rejected Collins’s claim, reasoning that any improper appeal to

societal alarm constituted harmless error in this case. Because the claim had been

adjudicated by the state court, the federal district court again employed the

deferential standard of 28 U.S.C. § 2254(d). The district court concluded that,

because the jury was instructed on their responsibility to consider the evidence in

determining guilt, and because the jury recommended punishment well within the



                                         -10-
range of sentencing, the state court’s decision did not unreasonably apply federal

principles of due process.

      W e agree. It was neither contrary to, nor an unreasonable application of,

federal law, for the state to conclude the above comments did not so infect the

trial proceedings as to deny Collins the fundamental fairness to which he is

entitled under the Constitution.

                                   III. Conclusion

      For the reasons stated above we DENY a COA and DISM ISS the appeal.

W e GRANT Collins’s motion to proceed in form a pauperis.

                                               Entered for the Court

                                               Timothy M . Tymkovich
                                               Circuit Judge




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