                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     November 1, 2006
                       UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                      TENTH CIRCUIT                     Clerk of Court



 R ICHA RD A LA N Y IN G LIN G ,

           Petitioner - A ppellant,
                                                         No. 06-6179
 v.
                                                  (D.C. No. CIV-04-1275-R)
                                                      (W .D. Oklahoma)
 RANDALL W ORKM AN, W arden,

           Respondent - Appellee.



                                         OR DER


Before HA RTZ, EBEL and TYM K O VICH , Circuit Judges.


       Richard Alan Yingling, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2254

petition for habeas corpus. W e deny his request for a COA and dismiss this

appeal. 1




       1
        In addition, M r. Yingling requests an evidentiary hearing and appointment
of counsel to represent him in the hearing. This Court had the benefit of
reviewing the trial transcript, the briefs and decision on the direct appeal, and the
briefs, report and order relating to his federal habeas petition. Because this Court
had access to all the evidence that M r. Yingling places at issue, and because this
Court denies his request for a COA, we also deny his request for an evidentiary
hearing. M r. Yingling also moves to proceed on appeal in forma pauperis,
without prepayment of costs or fees. W e grant the motion under Fed. R. App. P.
24 and 28 U.S.C. § 1915.
      In October 2002, M r. Yingling was convicted of first degree rape under

Oklahoma law , and sentenced to 25 years in prison. M r. Yingling directly

appealed to the Oklahoma Court of Criminal Appeals, which affirmed the

conviction. Yingling v. State, No. F-2002-1380 (Okla. Crim. App., filed April 5,

2004). M r. Yingling then petitioned the U .S. District Court for the W estern

District of O klahoma for habeas relief under 28 U .S.C. § 2254, on four grounds:

(1) that the evidence sustaining his conviction was insufficient to prove guilt

beyond a reasonable doubt; (2) that the outcome of his trial was prejudiced by

ineffective assistance of counsel; (3) that the trial court erred in failing to give

instructions on the lesser included offenses of attempted rape and sexual battery;

and (4) cumulative error from the aforementioned three bases.

      The U.S. District Court denied habeas relief. Yingling v. W orkman, No.

CIV-04-1275-R (W .D. Okla. M ay 12, 2006). In doing so, the Court adopted the

reasoning of the M agistrate Judge’s Report and Recommendation, which applied

both the standards set forth by 28 U.S.C. § 2254(d) (establishing that a writ of

habeas corpus pursuant to state court judgments can be granted only if the state

court’s decision 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), and the deference owing to state court

decisions even when that court’s reasoning was not fully explained (citing Aycox

v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999)). Similarly, this Court gives

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deferential treatment to state court decisions in considering a habeas petitioner’s

request for COA. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

        The D istrict Court, based on a very well-reasoned and thorough report

from the magistrate judge, found that each of the arguments behind M r.

Yingling’s habeas claim and his petition for COA had no merit. Report and

Recommendation, Yingling v. W orkman, No. CIV-04-1275-R (W .D. Okla. M arch

27, 2006). M r. Yingling’s insufficiency of the evidence claim points to

inconsistencies in the victim’s testimony, and argues that the evidence is

inadequate to prove beyond a reasonable doubt that physical penetration – a

required element for the crime of first degree rape – occurred. State law provides

that a victim’s testimony usually need not be corroborated to sustain a rape

conviction. See Gilmore v. State, 855 P.2d 143, 145 (Okla. Crim. App. 1993)

(“Corroboration is necessary for admission of a rape victim's testimony only

where the testimony is so unsubstantial and incredible as to be unworthy of

belief.”). The O klahoma Court of Criminal Appeals found that the victim’s

testimony here did not require corroboration. In addition, the victim’s testimony

was consistent with the hospital staff’s observation of physical injury, both of

which concluded that penetration occurred.     The U.S. District Court found that

the case readily met the standard that “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” See Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

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      M r. Yingling also asserted that his trial counsel represented him

ineffectively in several ways. M r. Yingling states that counsel failed to request in

writing (in contrast to the mere oral request made by counsel) a jury instruction

for the lesser included offenses of attempted rape and sexual battery. (The trial

court rejected counsel’s oral request.) M r. Yingling asserts that counsel failed to

move for a directed verdict or dismissal based on an argument of insufficient

evidence, although the Oklahoma Court of Criminal Appeals found that the state

presented sufficient evidence to support M r. Yingling’s conviction. M r. Yingling

also contends that counsel ineffectively represented him by failing to object to

certain expert testimony from the sexual assault nurse examiner who examined

the victim when she arrived at the hospital. (The nurse, who had already been

qualified as an expert by the trial court, testified about the different physiological

effects of consensual and non-consensual sex). The U.S. District Court found that

none of those bases met the standards to prevail on an ineffective assistance of

counsel claim. To implicate the Sixth Amendment, counsel’s representation must

fall “below an objective standard of reasonableness,” resulting in “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. W ashington, 466 U.S. 668,

688, 694 (1984). The U.S. District Court found that M r. Yingling simply cannot

demonstrate prejudice to his case’s outcome under any of the three arguments he

articulated.

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      As a third basis for habeas relief, M r. Yingling also claimed that the trial

court erred by refusing his counsel’s request to instruct the jury on the lesser

included offenses of attempted rape and sexual battery. Under state law, a trial

court is obligated to give a lesser included instruction only if the evidence

supports it. Shrum v. State, 991 P.2d 1032, 1034 (Okla. Crim. App. 1999);

Rowland v. State, 817 P.2d 263, 266 (Okla. Crim. App. 1991) (“the trial court

should instruct on lesser included offenses, whether requested or not, only if the

evidence reasonably tends to support a lesser included offense. This Court has

consistently held that it is the duty of the trial court to determine as a matter of

law whether the evidence is sufficient to justify the submission of instructions on

a lesser included offense, and if there is doubt, the court should submit the matter

to the jury.”). The O klahoma Court of Criminal Appeals affirmed the trial court’s

rejection of the requested instruction, finding that the evidence did not reasonably

support instructions on attempted rape or sexual assault, given that M r. Yingling

had admitted to having sex with the victim.

      The U.S. District Court also observed that there is no Constitutional right to

a lesser included offense instruction in non-capital cases. Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004). “Claims of erroneous jury instructions can justify

setting aside a state conviction on habeas review only if the errors had the effect

of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in

the constitutional sense, or is otherwise constitutionally objectionable as, for

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example, by transgressing the constitutionally rooted presumption of innocence.”

Id. at 938-939 (internal citations and punctuation omitted). Even if M r. Yingling

could prove that the evidence did support the requested instruction such that he

was w rongfully denied the instruction, he has not demonstrated that failure to

give the instruction was “so fundamentally unfair” as to sustain a habeas claim on

this ground.

      Finally, M r. Yingling argues that he is entitled to habeas relief based on

the accumulation of the above alleged errors. See United States v. Rivera, 900

F.2d 1462, 1469 (10th Cir. 1990) (“the cumulative effect of two or more

individually harmless errors has the potential to prejudice a defendant to the same

extent as a single reversible error.”). However, “[c]umulative error analysis

applies where there are two or more actual errors; it does not apply to the

cumulative effect of non-errors.” M oore v. Reynolds, 153 F.3d 1086, 1113 (10th

Cir. 1998). The U .S. District Court found – and this Court agrees – that there

were no errors in the above bases for M r. Yingling’s habeas claim, and therefore,

the cumulative error doctrine is inapplicable.

      W e have carefully reviewed the record, M r. Yingling’s brief, the district

court’s order, and the applicable law. W e conclude, for the same reasons set forth

by the district court in its order denying a certificate of appealability to M r.

Yingling, that he has not made a “substantial showing of the denial of a

constitutional right” under 28 U.S.C. § 2253(c)(2). Specifically, M r. Yingling has

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failed to demonstrate either that “jurists of reason could disagree with the district

court's resolution of his constitutional claims” or that “jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”

M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). Accordingly, we D ENY M r.

Yingling’s request for a COA and DISM ISS the appeal.




                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge




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