                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 18, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 CHARLES ANTHON Y FRAZIER,

                 Petitioner-A ppellant,                  No. 06-7069
          v.                                            (E.D. of Okla.)
 LENORA JORDAN, W arden,                        (D.C. No. CIV-03-181-RAW )

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Charles Anthony Frazier seeks habeas relief from his Oklahoma conviction

for running a roadblock after two or more prior felonies. Frazier was sentenced

to 45 years. He seeks relief pursuant to 28 U.S.C. § 2254 on the grounds that 1)

insufficient evidence existed that a legal roadblock had been established and 2)

prosecutorial misconduct improperly bolstered the credibility of one of the




      *
         This order and judgment is not binding precedent except under the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 consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         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.
witnesses regarding the existence of a legal roadblock. 1 The district court denied

his request for a Certificate of Appealability (COA).

      Frazier seeks a COA here. As a pro se appellant, we construe his pleadings

liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). W e will issue

a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Finding no constitutional rights

were denied Frazier, we DENY his request for a COA and DISM ISS the appeal.

                                  I. Background

      On September 21, 2000, Officer Roy Johnson of the Tulsa, Oklahoma

police force watched as a vehicle ran a traffic light and then turned into the wrong

lane. He suspected the driver was intoxicated, so he turned on his emergency

lights and proceeded to follow the car. The vehicle sped up, at which point

Johnson turned on his siren and began a pursuit that continued onto Highway 75

at speeds in excess of 100 miles per hour. Officer Johnson eventually turned off

his lights and siren, dropped back, and decreased pursuit when a police helicopter

took over the chase. A Highway Patrol vehicle driven by Trooper K eith Najera

soon took over the pursuit.




      1
        In his petition to the district court, Frazier also alleged his sentence
violated the Eighth Amendment as excessively long. That claim was denied and
he does not raise it as part of his request for COA here. W e therefore deem it
waived.

                                         -2-
      Okmulgee County Sheriff’s Deputy M ark Dawson was advised of the

pursuit. H e proceeded to Highway 75’s intersection with W ill Sampson Road.

No other vehicles were on the highway. W ithin 30 seconds to one minute, the

high speed chase approached the intersection. Dawson turned on his overhead

lights and all emergency lights on his marked Sheriff’s Department vehicle and

positioned the vehicle to block one lane of the highway while leaving the other

lane open in accordance with Oklahoma roadblock policy. Dawson did not leave

his vehicle to direct traffic. The pursued car slowed to 35 or 40 miles per hour,

sw itched lanes to avoid hitting Dawson’s vehicle, and then continued on with

Patrolman Najera in pursuit. Dawson then joined the pursuit until the fleeing

vehicle eventually pulled over.

      Charles A nthony Frazier was the driver of the car, and was eventually

charged with running a roadblock. Due to two or more prior felony convictions

on his record, he was sentenced to 45 years for his crime. In seeking a COA, he

asserts his due process and equal protection rights were violated because 1)

insufficient evidence existed that a legal roadblock had been established in

accordance with Okla. Stat. tit. 21, § 540B and 2) the prosecutor improperly

bolstered the testimony of Deputy Dawson that a legal roadblock had been

established.




                                         -3-
                                   II. Discussion

1. Sufficiency of Evidence

      “Sufficiency of the evidence is a mixed question of law and fact.”

M aynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006). W e ask 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, 443 U.S. 307, 319 (1979). In light of a

record where the facts support conflicting inferences, we must presume “that the

trier of fact resolved any such conflicts in favor of the prosecution.” Id. at 326.

      Frazier argues the State of Oklahoma failed to introduce evidence of an

essential element of a roadblock. The statute in question defines a roadblock as:

      . . . a barricade, sign, standing motor vehicle, or similar obstacle
      temporarily placed upon or adjacent to a public street, highway, or
      turnpike, or area accessible to the m otoring public, with one or more
      peace officers in attendance thereof directing each operator of
      approaching motor vehicles to stop or proceed.

Okla. Stat. tit. 21, § 540B (Supp. 1999). According to Frazier, Deputy Dawson

had not established a legal roadblock because he did not exit his patrol car to

direct “approaching motor vehicles to stop or proceed.”

      The trial court found Dawson had created a legal roadblock, as it would be

“incredibly dangerous” if the statute required the officer to be outside his car

waving his hands to meet the legal terms of roadblock. M agistrate R eport &

Recommendation at 5. On appeal, the Oklahoma Court of Criminal Appeals

                                         -4-
determined that Deputy Daw son’s actions in turning on all of his lights were

sufficient to prove beyond a reasonable doubt that he was directing Frazier to

stop. Thus, a valid roadblock was established.

      Our review under AEDPA requires that we respect state court decisions

unless those decisions 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 of the United States; or 2) resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) and (2); see

M aynard, 468 F.3d at 673. On review, we agree with the lower courts, which

found the facts above sufficient to establish the presence of a legal roadblock. It

was not unreasonable for the Oklahoma courts to determine Dawson’s actions of

turning on all of his lights and blocking one lane of traffic w ere sufficient to

indicate his desire for oncoming traffic to stop, nor was such a finding an

unreasonable interpretation of the Oklahoma roadblock statute.

2. Prosecutorial M isconduct

      Frazier next contends prosecutorial misconduct occurred as a result of the

prosecution improperly bolstering its case during closing arguments by repeating

testimony from Officer Najera that he saw a roadblock ahead. Frazier contends

this testimony belied the facts and injected an unwarranted legal conclusion into

the proceedings. By claiming a legal roadblock existed, via the injection of

                                          -5-
Najera’s testimony into closing arguments, Frazier argues the trial proceedings

were infected w ith unfairness that denied him due process.

      Finding prosecutorial misconduct on habeas review requires more than the

existence of “undesirable or even universally condemned” remarks by the

prosecutor. Darden v. Wainwright, 477 U.S. 168, 181 (1986). The relevant

inquiry “is w hether the prosecutor[’s] comments so infected the trial w ith

unfairness as to make the resulting conviction a denial of due process.” Id.

G iven the sufficiency of the evidence above that a roadblock was established, w e

do not find improper the prosecutor’s repetition during closing arguments of

testimony from Officer Najera regarding a roadblock.

      Based on the facts, the deferential standard of review before us, and the

report and recommendation of the magistrate judge, we DENY the petition for

COA on all of Frazier’s claims.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




                                         -6-
