                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUL 13 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 THOMAS M. LEWTER,

          Petitioner-Appellant,

 v.

 ATTORNEY GENERAL OF THE                               No. 98-6182
 STATE OF OKLAHOMA,                                (D.C. No. 97-CV-535)
                                                       (W.D. Okla.)
          Defendant-Appellee,

 GARY CARDINALE; OKLAHOMA
 DEPARTMENT OF CORRECTIONS,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      In this 28 U.S.C. § 2254 state habeas corpus action, Thomas M. Lewter

asserts two claims for relief: First, he claims that the government presented

insufficient evidence to convict him of conspiracy to traffic a controlled

dangerous substance after former conviction of two or more felonies (Count I).

Second, Mr. Lewter claims that the Oklahoma Court of Criminal Appeals erred by

refusing to reduce his sentence for two counts of trafficking in illegal drugs

(Counts V and VIII). 1 The magistrate judge recommended that Mr. Lewter’s

petition be denied on the merits. The district court adopted the magistrate’s

Report and Recommendation, denied the petition, and declined to grant Mr.

Lewter a certificate of appealability. A habeas petitioner is entitled to a

certificate of appealability only if the petitioner has made a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the following

reasons, we deny Mr. Lewter’s request for a certificate of appealability and

dismiss the appeal.



      1
        Mr. Lewter originally appealed the district court’s disposition of Count II,
but then corrected his brief. To the extent Mr. Lewter intends to appeal the
Oklahoma Court of Criminal Appeals’ disposition of any count other than Counts
I, V, and VIII, we do not consider the appeal as Mr. Lewter failed to raise the
issues below. See United States v. Killingsworth, 117 F.3d 1159, 1162 n.2 (10th
Cir. 1997).

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        Mr. Lewter was charged with numerous counts of criminal activity after

prior conviction of two felonies. The jury convicted him on several counts

including Count I, a conspiracy which allegedly lasted from January 1 to April 7,

1989, and Counts V and VIII which stemmed from methamphetamine sales on

February 23 and March 8, 1989, respectively. The jury acquitted him of two

charges arising from the criminal activity of a co-conspirator in late March of

1989. Mr. Lewter had been convicted of one felony prior to January 1989;

another felony conviction (unrelated to this case) became final on March 10,

1989.

        The Oklahoma Court of Criminal Appeals upheld Mr. Lewter’s conviction

and sentence on Count I, and his sentence for Counts V and VIII. In affirming

Count I, it noted that the conspiracy lasted through early April, by which time Mr.

Lewter had been convicted of two felonies. It found that Mr. Lewter had only

been convicted of one felony when he committed Counts V and VIII, but declined

to modify his twenty-year sentence for each count as they “are in the range of

punishment provided for by law” without enhancement. Aplt. App. at 11.

        With respect to Counts V and VIII, “if a state appellate court has authority

to exercise its own discretion and to modify a jury sentence on appeal as a matter

of state law, no due process violations occurs” when it does so. Carbray v.

Champion, 905 F.2d 314, 318 (10th Cir. 1990) (citing Clemmons v. Mississippi,


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494 U.S. 738 (1990)). The Oklahoma Court of Criminal Appeals has such

authority, see Livingston v. State, 795 P.2d 1055, 1058-59 (Okla. Crim. App.

1990), and in its discretion declined to reduce Mr. Lewter’s sentence as it was in

the permissible range for Counts V and VIII as modified. See Beaird v. Cody,

No. 95-6061, 1995 WL 422855 at *1-*2 (10th Cir. July 19, 1995) (unpublished).

Mr. Lewter has thus failed to make a substantial showing of the denial of a

constitutional right and we therefore decline to grant a certificate of appealability

on this issue.

      Mr. Lewter also claims that the government presented insufficient evidence

to convict him of Count I, conspiracy after former conviction of two felonies.

Specifically, he argues that the state was obligated to prove he participated in the

conspiracy after March 10, 1989, the date of his second felony conviction. He

claims the government presented no such evidence, pointing to the jury’s decision

to acquit him of the two charges arising from conduct occurring from late March

1989 to buttress this proposition. He argues that the state therefore violated his

constitutional right to be convicted only upon proof beyond a reasonable doubt.

      “[T]he Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970)).

After reviewing the record, the Oklahoma Court of Criminal Appeals held that


                                          -4-
because the conspiracy continued to April 7, 1989, the felony conviction that

became final on March 10, 1989, was sufficient to enhance the conspiracy.

Without the state court trial record, which is not in our record on appeal, we are

unable to evaluate whether the evidence is sufficient on this issue to meet the due

process standard. It is petitioner’s burden, through counsel, to submit an

adequate record on appeal. See 10th Cir. Rule 10.1(A)(1)(a) (“When sufficiency

of the evidence is raised, the entire relevant trial transcript must be provided.”).

Consequently, we deny a certificate of appealability on this issue as well.

      In conclusion, we DENY the certificate of appealability and DISMISS the

appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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