                                                                            FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   January 28, 2009
                          FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 MATTHEW JOHNSON,

              Petitioner-Appellant,

 v.                                                     No. 08-5035
                                            (D.C. No. 4:03-CV-00060-JHP-SAJ)
 MICKEY LILES, Sued as:                                 (N.D. Okla.)
 Warden Lyles; RON WARD,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



      Matthew Johnson seeks leave to appeal from the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In order for his appeal

to proceed, we must first grant him a certificate of appealability (COA).

28 U.S.C. § 2253(c)(1)(A). A COA will issue only if he has “made a substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). We conclude

that he has failed to make such a showing. We therefore deny him a COA and

dismiss this appeal.

      A state court jury convicted Mr. Johnson of one count of first degree felony

murder and six counts of robbery with a firearm. He was sentenced to life
imprisonment on the first degree murder count and to twenty years’ incarceration

on each of the robbery counts. The trial court ordered that these sentences be

served consecutively.

      On appeal to the Oklahoma Court of Criminal Appeals (OCCA),

Mr. Johnson raised four issues. He contended that: the trial court committed

reversible error by failing to suppress evidence resulting from his arrest by Tulsa

police officers acting outside their jurisdiction; the State’s failure to disclose a

pending felony charge against a key eyewitness and its delay of that eyewitness’s

trial pending her testimony against Mr. Johnson deprived him of a fair trial; his

sentence was excessive and disproportionate to that received by the victim’s

actual killer; and the trial court committed reversible error by instructing the jury

that it must acquit him of first degree murder before considering a conviction for

second degree murder. The OCCA considered and rejected each of these

propositions of error.

      Mr. Johnson then filed this petition for a writ of habeas corpus in the

United States District Court for the Northern District of Oklahoma. In his

petition he raised essentially the same issues that he had previously presented to

the OCCA. The district court denied the petition, reasoning as follows:

      (1) that Mr. Johnson’s claim concerning the legality of his arrest and the

admissibility of the evidence seized as a result was barred in federal habeas

proceedings by Stone v. Powell, 428 U.S. 465, 494 (1976);

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      (2) that he failed to demonstrate the existence of a reasonable probability

that the state’s failure to timely produce the evidence of a pending felony charge

against its eyewitness as required by Brady v. Maryland, 373 U.S. 83, 87 (1963),

had resulted in a verdict unworthy of confidence, in light of all the evidence,

including his own confession;

      (3) that he failed to show a federal constitutional error in the length of his

sentence; and

      (4) that he failed to demonstrate that the allegedly erroneous jury

instruction made his trial fundamentally unfair or that the OCCA’s determination

upholding the instruction was “contrary to, or involved an unreasonable

application of, clearly established Federal law,” or “resulted in a decision that

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

presented” at trial. 28 U.S.C. § 2254(d)(1), (2).

      We have carefully reviewed the record, including the state court record of

Mr. Johnson’s suppression motions, his trial, the evidentiary hearing on his new

trial motion, and his sentencing. We have also studied Mr. Johnson’s brief filed

in this court and his motion for a COA and the applicable law. We now deny him

a COA for substantially the same reasons articulated in the district court’s order

denying a COA of March 13, 2008, and its opinion and order denying habeas

relief of February 19, 2008.




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    Mr. Johnson’s application for a COA is DENIED and this appeal is

DISMISSED.


                                              Entered for the Court



                                              David M. Ebel
                                              Circuit Judge




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