                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 27 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 LANCE E. SHEPLER,

           Petitioner-Appellant,
 v.                                                       No. 99-7021
 ED EVANS, Warden; ATTORNEY                         (D.C. No. 96-CV-231-S)
 GENERAL OF THE STATE OF                                  (E.D.Okla.)
 OKLAHOMA,

           Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY and BRISCOE, 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Lance Shepler, a state prisoner represented by retained counsel, seeks a

certificate of probable cause to appeal from the district court’s denial of his 28


       This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 2254 habeas petition.    1
                                      Because Shepler has failed to make a “substantial

showing of the denial of [a] federal right,”         Barefoot v. Estelle , 463 U.S. 880, 893

(1983) (internal quotation marks and citation omitted), we deny a certificate of

probable cause and dismiss the appeal.

                                               I.

       Shepler was charged in November 1992 in the District Court of Johnston

County, Oklahoma with one count of rape by instrumentation of his infant

daughter. See Okla. Stat. Ann. tit. 21, § 1111.1 (West Supp. 1999). Three

months later, the court combined Shepler’s preliminary hearing on the rape charge

with an adjudicatory hearing designed to assess whether his daughter had been

“deprived,” see Okla. Stat. Ann. tit. 10, § 1101(4) (West Supp. 1994), and should

be placed in protective custody. Following this combined hearing, the court

concluded the state had not proved sexual abuse (or, more specifically, rape by

instrumentation) by clear and convincing evidence as is required to establish that

a child has been deprived.     See Matter of C.G. , 637 P.2d 66, 70-71 (Okla. 1981).

The court nevertheless found the state had shown, by clear and convincing

evidence, that Shepler had used unreasonable and excessive force against his


       1
         Because Shepler filed his petition on March 19, 1996, the Antiterrorism
and Effective Death Penalty Act, which became effective April 24, 1996, and
mandates the issuance of a certificate of appealability as a prerequisite to the
appeal of a denial of a § 2254 petition, does not apply.  See Lindh v. Murphy , 521
U.S. 320, 326-27 (1997).

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daughter and thus adjudicated the child “deprived.” In a signed minute order, the

court specifically noted that its ruling on the sexual abuse allegations was

confined to the clear and convincing evidence    proof standard and that it would

issue a subsequent opinion regarding whether the state had advanced    probable

cause of rape by instrumentation. Less than one month later, the court concluded

probable cause of rape by instrumentation had been established and ordered

defendant bound over for trial.

      After a two-day jury trial, Shepler was convicted of rape by instrumentation

and was later sentenced to thirty-five years’ imprisonment. The Oklahoma Court

of Criminal Appeals affirmed Shepler’s conviction in a summary opinion. In

March 1996, Shepler filed the instant habeas petition asserting his conviction

must be reversed because (1) the doctrine of collateral estoppel should have

barred the state from pursuing the prosecution based on the trial court’s rulings at

the “deprived child” adjudication hearing, and (2) the criminal information

charging him with rape by instrumentation was deficient. The district court,

adopting the report and recommendation of the magistrate judge, denied relief.




                                          II.

      Collateral Estoppel


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       The Double Jeopardy Clause of the Constitution, as applied to the states

through the Fourteenth Amendment, embodies the doctrine of collateral estoppel.

Ashe v. Swenson , 397 U.S. 436, 445 (1970). Collateral estoppel, or, as it is often

known, issue preclusion, “means simply that when an issue of ultimate fact has

once been determined by a valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit.”   Id. at 443. The

doctrine is inapplicable here. As the state trial court made clear in its rulings, the

burden of proof requirement at the initial “deprived child” adjudication hearing

was considerably greater than the proof standard at the preliminary hearing. The

fact that the state did not establish evidence of rape by clear and convincing

evidence did not necessarily mean the state did not demonstrate probable cause of

rape. The differences in proof standards preclude application of the collateral

estoppel doctrine.   See United States v. One Assortment of 89 Firearms    , 465 U.S.

354, 362 (1984); Helvering v. Mitchell , 303 U.S. 391, 397 (1938).

       Sufficiency of Indictment

       Shepler also contends the criminal information charging him with rape by

instrumentation failed to allege the victim was under sixteen years old and thus

was deficient as a matter of law. We need not reach the merits of this argument.

“The sufficiency of an indictment or information is primarily a question of state

law.” Tapia v. Tansy , 926 F.2d 1554, 1560 (10th Cir. 1991). “[F]ederal habeas


                                            -4-
corpus relief does not lie for errors of state law.”     Estelle v. McGuire , 502 U.S.

62, 67 (1991) (quoting Lewis v. Jeffers , 497 U.S. 764, 780 (1990)). Although the

notice provided by a charging instrument must comport with the due process

guarantee of a fair trial,   see Jackson v. Virginia , 443 U.S. 307, 314 (1979), there

is no suggestion here that Shepler did not have adequate notice of the specific

charges being leveled against him.

       Shepler’s application for a certificate of probable cause is DENIED and his

appeal is DISMISSED. The mandate shall issue forthwith.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




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