                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          June 3, 2005
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 WAYNE SIMMONS,

       Petitioner-Appellant,

 v.                                                    No. 04-5183
                                                   (D.C. No. 01-CV-688-E)
 RON WARD,                                             (N.D. Okla.)

       Respondent-Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Wayne Simmons, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition.

For substantially the same reasons set forth by the district court, we DENY

Simmons’ request for a COA and DISMISS.

      In July 1998, Simmons was convicted of first-degree murder and assault

and battery with a deadly weapon in Oklahoma state court, and was sentenced to

life imprisonment without possibility of parole for the murder conviction and

ninety-nine years for the assault and battery conviction. During state appellate

proceedings, the Oklahoma Court of Criminal Appeals (“OCCA”) rejected

Simmons’ four claims of error and affirmed his conviction and sentence.
Simmons filed the instant petition in federal district court pursuant to § 2254

raising eight claims which restated the four raised in his direct state appeal. 1 The

eight claims were substantively indistinct from the four raised on direct appeal.

Accordingly, the district court organized Simmons’ eight claims into the

following four categories: (1) sufficiency of the evidence in that the evidence at

trial failed to establish that Simmons fired the shots that caused the injury or

death (ground 1); (2) sufficiency of the evidence in that the evidence failed to

establish that Simmons had the required intent to support first degree murder

(ground 2); (3) failure to instruct the jury on lesser included offenses (ground 3);

and (4) improper prosecutorial arguments that warrant reversal or modification of

his sentence (grounds 4-8).

       Under AEDPA, if a claim is adjudicated on the merits in state court, we



   1
      Simmons’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Simmons to show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Simmons a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

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will grant habeas relief only if that adjudication 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 “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)–(2). After

careful review of Simmons’ application, the district court’s order denying relief,

and the material portions of the record on appeal, we conclude that Simmons’

claims are without merit. Accordingly, Simmons has failed to make “a substantial

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

      In response to Simmons’ allegations, the district court determined that

OCCA’s decisions on Simmons’ claims were neither unreasonable determinations

of fact nor unreasonable applications of the standards for determining sufficiency

of the evidence, failure to give a jury instruction, or prosecutorial misconduct,

and denied habeas relief on these bases. We agree.

      The OCCA evaluated Simmons’ insufficiency of the evidence claims and

concluded that the evidence was sufficient to support a finding that Simmons

fired the shots that injured both victims. The OCCA also rejected Simmons’

challenge to the sufficiency of the evidence supporting the element of intent,

finding that the evidence showed that Simmons aimed the gun before shooting,

and that “his conduct of holding the gun with both hands, arms extended at chest


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level and squatting down to fire contradicts his claim of lack of intent.” The

district court found that OCCA’s two decisions on sufficiency of the evidence

were not contrary to, or an unreasonable application of    Jackson v. Virginia , 443

U.S. 307, 324 (1979).

      As for Simmons’ claims that the trial court failed to give instructions on

lesser included offenses, OCCA determined that the jury did receive a lesser

included offense instruction on “First Degree Manslaughter– Heat of Passion.” In

his state appeal, Simmons argued that he should have received a “Second Degree

Murder” instruction and a “First Degree Manslaughter – Misdemeanor”

instruction. The OCCA rejected these claims, noting that the defense counsel had

specifically objected to the giving of any instructions on lesser included offenses,

and that the evidence at trial did not support the giving of other lesser included

offense instructions. Based on the standard in     Henderson v. Kibbe , 431 U.S. 145,

154 (1977) and Nguyen v. Reynolds , 131 F.3d 1340, 1357 (10th Cir. 1997), the

district court found that Simmons had failed to demonstrate that any error in the

jury instructions was so fundamentally unfair as to deprive him of a fair trial and

due process of law. Citing    Lujan v. Tansy , 2 F.3d 1031, 1036 (10th Cir. 1993),

the district court also noted that we have held that failure of a state court to

instruct on a lesser included offense in a noncapital case never raises a federal

constitutional question.


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      Finally, Simmons argued that the prosecutor’s “high-spirited jabs” at

defense counsel and misstatement of the evidence in closing argument denied him

a fundamentally fair trial. After reviewing the alleged instances of prosecutorial

misconduct, the OCCA concluded that none warranted relief, particularly as the

comments were objected to, sustained, and the trial court immediately gave

curative instructions. The district court found that the OCCA’s rejection of this

claim was not an unreasonable application of constitutional law under the

standards in Donnelly v. DeChristoforo , 416 U.S. 637, 642-648 (1974), because

the prosecutor’s remarks did not so infect the trial with unfairness as to deny his

right to due process.

      Because we determine that OCCA’s resolution of these issues was       a

reasonable application of clearly established Federal law, based on a reasonable

determination of the facts in light of the evidence presented in the state court

proceeding, Simmons’ application for a COA is DENIED and the appeal is

DISMISSED.

                                               ENTERED FOR THE COURT

                                               Carlos F. Lucero
                                               Circuit Judge




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