                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           February 7, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 JACK AARON LOGSDON,

           Petitioner–Appellant,

 v.                                                         No. 12-6232
                                                     (D.C. No. 5:11-CV-01471-F)
 KAMERON HARVANEK, Warden, John                             (W.D. Okla.)
 Lilley Correctional Center,

           Respondent–Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Jack Logsdon, an Oklahoma prisoner, seeks a certificate of appealability (“COA”)

to appeal the district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and

dismiss the appeal.

                                             I

       Logsdon was convicted in Oklahoma state court of sixteen counts of fraudulent

sales of securities, forgery, obtaining money by false pretenses, and racketeering. On

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) vacated Logsdon’s

restitution order and reduced his sentence for the racketeering conviction, but affirmed in

all other respects. After unsuccessfully seeking state post-conviction relief, Logsdon

filed a § 2254 petition in federal court raising several claims. A magistrate judge

recommended that the petition be denied. Over Logsdon’s objections, the district court

adopted the report and recommendation in full and denied a COA. Logsdon now seeks a

COA from this court.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). To meet this standard,

Logsdon must demonstrate “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). To prevail on the merits,

Logsdon must show that the OCCA’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or “was based on an

unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(1),

(2).

       Logsdon argues that the evidence presented at his trial was insufficient to support


                                            -2-
a conviction for racketeering because the state failed to prove the existence of an

enterprise, and that his crimes involved only “garden variety fraud” falling outside the

ambit of the racketeering statute. In assessing a claim of insufficient evidence, we must

determine “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because the

OCCA applied this standard in rejecting Logsdon’s claim on the merits, we need only

determine whether its application of Jackson was reasonable. See Brown v. Sirmons, 515

F.3d 1072, 1089 (10th Cir. 2008).

       Under the Oklahoma racketeering statute, “[n]o person employed by or associated

with any enterprise shall conduct or participate in, directly or indirectly, the affairs of the

enterprise through a pattern of racketeering activity or the collection of an unlawful

debt.” Okla. Stat. tit. 22, § 1403(A). An “enterprise” is defined to include any individual

or group of persons “involved in any lawful or unlawful project or undertaking.” Okla.

Stat. tit. 22, § 1402(2). In Glenn v. State, 26 P.3d 768 (Okla. Crim. App. 2001), the

OCCA held that the state racketeering act was not intended to apply to “garden-variety

crimes” that have “no larger effect on society beyond that of the normal criminal offense”

and do not “affect legitimate businesses or state government.” Id. at 771, 772.1


       1
        In conducting our analysis, we are bound by state-court interpretation of the
criminal law at issue. See House v. Hatch, 527 F.3d 1010, 1028 (10th Cir. 2008).


                                             -3-
       Logsdon relies heavily on Glenn in arguing that his crimes did not involve an

enterprise, but ordinary fraud that is not subject to racketeering charges. However, in

Miskovsky v. State, 31 P.3d 1054 (Okla. Crim. App. 2001), issued several months after

Glenn, the OCCA held that an attorney who “operated a legitimate business at least in

part to further his criminal goals” was properly convicted of racketeering. Id. at 1059.

The court distinguished Glenn as a case involving “two men who engaged in a short-term

series of local cattle thefts,” id., and explained that an individual “who conducts a

corporation’s affairs through illegal acts is a person unlawfully conducting an enterprise,”

id. at 1063. The OCCA cited Miskovsky in denying Logsdon’s insufficient evidence

claim on direct appeal.

       We agree with the district court that Miskovsky dooms Logsdon’s insufficient

evidence claim. As in that case, the evidence presented at Logsdon’s trial shows that he

used a number of legitimate businesses, including several travel agencies, to facilitate his

fraudulent schemes. Under Miskovsky, the use of a legitimate business in this manner

constitutes an enterprise and removes a defendant’s crimes from the garden-variety

category. See id. at 1059, 1063.

       Logsdon also argues that the Glenn and Miskovsky opinions interpret the

racketeering statute so inconsistently as to violate the Due Process Clause. “[A]

deprivation of the right of fair warning can result not only from vague statutory language

but also from an unforeseeable and retroactive judicial expansion of narrow and precise


                                            -4-
statutory language.” Bouie v. City of Columbia, 378 U.S. 347, 352 (1964). However,

the OCCA meaningfully distinguished the circumstances present in Glenn and

Miskovsky and reasonably applied that distinction to the facts at hand. Logsdon has not

shown that the OCCA’s interpretation of the racketeering statute “fails to give a person of

ordinary intelligence fair notice that his contemplated conduct is forbidden by the

statute.” Id. at 351 (quotation omitted). Accordingly, his due process claim fails.

                                            III

       Because we conclude that the district court’s denial of Logsdon’s § 2254 petition

is not reasonably debatable, his application for a COA is DENIED.

                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge




                                           -5-
