                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2008
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 HENRY VEASMAN,

                 Petitioner-Appellant,                  No. 08-5023
          v.                                           (N.D. of Okla.)
 MIKE MULLIN, Warden,                         (D.C. No. CV-04-602-TCK-PJC)

                 Respondent-Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **



      Henry Elvis Veasman seeks a certificate of appealability (COA) to

challenge the district court’s denial of habeas corpus relief to him under 28

U.S.C. § 2254. The district court denied all seven of Veasman’s constitutional




      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
claims. Proceeding pro se, 1 Veasman now seeks a COA from this court on five of

the grounds raised below.

      We conclude Veasman is not entitled to relief under § 2254 and therefore

DENY his request for a COA.

                                 I. Background

      Veasman was convicted of drug and firearm offenses in Oklahoma state

court. The court imposed a cumulative sentence of imprisonment of 61 years.

After his conviction and sentencing, Veasman appealed to the Oklahoma Court of

Criminal Appeals (OCCA). He raised seven propositions of error, 2 all of which

were rejected by the OCCA. Veasman restated the same seven claims in a

petition for habeas corpus filed in the federal district court. Veasman also sought

an evidentiary hearing to supplement the record for his habeas petition. The

district court rejected all seven of Veasman’s claims and denied him an

evidentiary hearing. This request for a COA followed.




      1
         Because Veasman proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
      2
         The seven alleged errors were: (1) error in overruling his motion to
suppress; (2) insufficient evidence to prove possession of marijuana with intent to
distribute; (3) insufficient evidence to prove use of a weapon in commission of a
felony; (4) prosecutorial misconduct; (5) error in rejecting his motion for
severance; (6) improper calculation and excessive length of sentence; and (7)
cumulative error depriving him of a fair trial.

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                                    II. Discussion

        To obtain a COA, Veasman must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). This standard is satisfied by demonstrating that “reasonable

jurists could debate whether . . . 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)

(internal quotation marks omitted). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail.” Miller-El, 537

U.S. at 338.

        Veasman seeks a COA from this court on five grounds. First, he argues the

Oklahoma trial court erred in denying his motion to suppress. Second, he asserts

prosecutorial misconduct during the course of his trial. Third, he claims the trial

court erred in denying his motion to sever his trial from the trial of his co-

defendant. Fourth, he argues his sentence was improperly calculated under an

out-of-date statute. Fifth, he states the cumulative effect of the four errors he

alleges deprived him of a fair trial.

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

conclude that Veasman’s petition has no merit. We address each argument in

turn.

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      Motion to Suppress

      The district court determined it was precluded from reviewing Veasman’s

Fourth Amendment motion-to-suppress claim because Veasman had a full and fair

opportunity to litigate the claim in state court. The district court’s conclusion

was correct.

      The Supreme Court has long held “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was introduced at his

trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). This rule has survived the

enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). See,

e.g., Brown v. Sirmons, 515 F.3d 1072, 1082–83 (10th Cir. 2008) (applying rule

announced in Stone). Because we agree with the district court that the OCCA

fully and fairly adjudicated Veasman’s Fourth Amendment claim, we cannot

consider the claim here.

      Prosecutorial Misconduct

      Veasman alleges various acts of prosecutorial misconduct, including

improper closing remarks and appeals to societal alarm. We agree with the

district court that none of the prosecutor’s alleged misconduct rises to the level of

a constitutional violation. “Generally, a prosecutor’s improper remarks require

reversal of a state conviction only if the remarks ‘so infected the trial with

                                          -4-
unfairness as to make the resulting conviction a denial of due process.’” Hung

Thanh Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Veasman points to no misconduct

rising to that level here.

       Motion for Severance

       Veasman argues the Oklahoma trial court should have severed his trial from

the trial of his co-defendant. Severance is generally a question of state law not

cognizable in federal habeas proceedings. See Fox v. Ward, 200 F.3d 1286, 1292

(10th Cir. 2000). Veasman can state a claim for relief, however, if “there is a

strong showing of prejudice caused by the joint trial.” Id. (quoting Cummings v.

Evans, 161 F.3d 610, 619 (10th Cir. 1998)). “Such actual prejudice is shown if

the defenses are truly mutually exclusive, such that the jury could not believe the

core of one defense without discounting entirely the core of the other.” Id. at

1293 (quotation omitted).

       We agree with the district court that Veasman’s allegations do not meet this

standard. As the OCCA noted, the defenses of Veasman and his co-defendant

were almost entirely consistent with each other; the jury did not need to entirely

discount one to believe the other. Veasman has not suffered prejudice rising to

the level of a constitutional violation.




                                           -5-
      Sentencing Calculations

      The district court correctly concluded habeas relief is not available to

Veasman based on the length of his sentence. Veasman’s primary argument is

that he was sentenced under an out-of-date statute to 40 years imprisonment for

manufacturing methamphetamine. He correctly notes the applicable portion of

the Oklahoma sentencing statute for that crime was changed from a range of “20

years to life” to “7 years to life.” Compare Okla. Stat. tit. 63, § 2-401(G)(2)

(2000), with id. (2002); see also 2001 Okla. Sess. Laws ch. 437, § 31(C). The

change took effect after Veasman committed the crime, but before his conviction

and sentencing. Because this is the first time Veasman has raised this argument,

however, we will not consider it.

      It is well settled that an argument not raised on direct appeal in state court

will be procedurally barred absent several exceptions not relevant here. 3 See

Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002) (“In order to exhaust his

state remedies, a federal habeas petitioner must have first fairly presented the

substance of his federal habeas claim to state courts.”); Medlock v. Ward, 200

F.3d 1314, 1322–23 (10th Cir. 2000) (“We may not consider issues raised in a

habeas petition that have been defaulted in state court on an independent and


      3
        On direct appeal to the OCCA, Veasman claimed his sentence violated
Oklahoma law for the sole reason that its length was “excessive” and “shocked
the conscience.” R., Ex. D (Aplt. Br.) at 37 (citing Bartell v. Oklahoma, 881 P.2d
92, 101 (Okla. Crim. App. 1994)).

                                         -6-
adequate procedural ground, unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” (internal quotation marks

omitted)). Veasman gives us no reason to depart from the general rule that

arguments not presented in the state courts will not be considered on habeas

review.

      Cumulative Error

      Because we conclude the district court correctly determined all four of

Veasman’s other claims lacked merit, the district court was obviously correct to

conclude there was no cumulative error. See, e.g., Workman v. Mullin, 342 F.3d

1100, 1116 (10th Cir. 2003) (concluding defendant’s “sentence cannot be

unconstitutional due to cumulative error because we have not found that the

district court committed error”).

                                    III. Conclusion

      For the reasons set forth above, we DENY Veasman’s petition for a COA.

We GRANT his motion to “hold his pro se pleadings in [sic] less stringent

standards.”

                                        Entered for the Court,


                                        Timothy M. Tymkovich
                                        Circuit Judge




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