                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
              UNITED STATES COURT OF APPEALS                             OCT 15 2003

                               TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk


 HAROLD LOYD JOHNSON,

       Petitioner-Appellant,
                                                       No. 02-6156
 v.                                              (D.C. No. 97-CV-1740-F)
                                                       (W.D. Okla.)
 RON WARD,

       Respondent-Appellee.



                        ORDER AND JUDGMENT


Before TACHA, Chief Judge, SEYMOUR and BRORBY, Circuit Judges.


      In a petition for writ of habeas corpus, Harold Loyd Johnson contends the

state trial court violated his rights under the Sixth and Fourteenth Amendments

when it refused to give voluntary intoxication jury instructions. Mr. Johnson

argues that he lacked the specific intent to commit murder because he was

voluntarily intoxicated, and that the jury should have had the opportunity to

convict him of the lesser-included offense of manslaughter. The district court

denied relief. We affirm.

      During the weekend of August 12-14, 1994, Mr. Johnson drank beer

continuously from Friday evening until Sunday, stopping only to sleep. Early
Sunday morning, he got into an argument with Jesse Davis, an acquaintance of

his. Mr. Johnson shot Mr. Davis twice in the chest. After Mr. Davis fell to the

ground, Mr. Johnson stood over him and shot him three more times in the back.

When his gun was empty, Mr. Johnson pistol-whipped Mr. Davis with the gun.

Mr. Davis died shortly thereafter.

      At trial, Mr. Johnson testified he had been so intoxicated during the

evening that he had blacked out. He asked the court to give the jury a series of

instructions explaining that they were obligated to find him not guilty if they had

reasonable doubt he could form the specific intent to commit murder. The court

instructed regarding intent but concluded Mr. Johnson had failed to present

sufficient evidence to warrant an instruction on the defense of voluntary

intoxication under Oklahoma law because he could recall many of the evening’s

events “with particularity and specificity.” Aplt. App. at 131. The Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed, noting Mr. Johnson “recalled

everything that happened that evening but the actual shooting, at which time he

claims to have blacked out.” Id. at 13. The jury convicted Mr. Johnson, and he

was sentenced to life imprisonment without parole. This habeas corpus petition

followed.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), if a claim is adjudicated on the merits in state court, a petitioner is


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entitled to federal habeas relief only if he can establish that the state court

decision “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). The AEDPA also requires federal courts to presume state court factual

findings are correct and places the burden on the petitioner to rebut that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

      Mr. Johnson relies on Beck v. Alabama, 447 U.S. 625 (1980), in which the

Supreme Court mandated lesser-included offense instructions in capital cases

where supported by the evidence. The Court specifically stated, however, that

“[w]e need not and do not decide whether the Due Process Clause would require

the giving of such instructions in a noncapital case.” Id. at 638 n.14. This circuit

has since held that “a petitioner in a non-capital case is not entitled to habeas

relief for the failure to give a lesser-included offense instruction, ‘even if in our

view there was sufficient evidence to warrant the giving of an instruction on a

lesser included offense.’” Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993)

(quoting Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988)).

      “On federal habeas review, we review the alleged error in failing to instruct

on voluntary intoxication in the context of the entire trial, only for the denial of


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fundamental fairness and due process.” Spears v. Mullin, 343 F.3d 1215, 1244

(10th Cir. 2003). As a petitioner attacking a state court judgment based on a

refusal to give a requested jury instruction, the burden on Mr. Johnson is

especially great. Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999). This is

because “[a]n omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law.” Id. (internal quotations omitted)

(quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). 1

      Under Oklahoma law, a trial judge first has a duty to decide whether the

voluntary intoxication defense is sufficiently raised to warrant an instruction.

Jackson v. State, 964 P.2d 875, 892 n.5 (Okla. Crim. App. 1998). The defense of

voluntary intoxication requires that a defendant, “first, be intoxicated and,

second, be so utterly intoxicated, that his mental powers are overcome, rendering

it impossible for a defendant to form the specific criminal intent or special mental

element of the crime.” Id.; see also Frederick v. State, 37 P.3d 908, 942 (Okla.

Crim. App. 2001) (holding mere consumption of alcohol and marijuana

insufficient to raise defense without showing consumption prevented defendant

from forming intent); Bland v. State, 4 P.3d 702, 718 (Okla. Crim. App. 2000)



      1
        Mr. Johnson also contends the failure to give an instruction on an element
of the crime is structural error. The district court correctly held that such an error
would constitute trial error only, subject to the harmless error rule. See Aplt.
App. 47-48.

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(upholding refusal to give instruction because defendant gave detailed account of

crime’s circumstances).

      Applying these standards, the OCCA found that Mr. Johnson failed to

present sufficient evidence to warrant an instruction on the defense of voluntary

intoxication. On this record, in light of the high standards imposed by AEDPA,

we conclude that the failure to give a voluntary intoxication instruction did not

render Mr. Johnson’s trial fundamentally unfair. 2

      For the foregoing reasons, we AFFIRM.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




      2
        We need not address Mr. Johnson’s exhaustion argument because it is
proper to consider an unexhausted claim on the merits for the purpose of denying
relief. 28 U.S.C. § 2254(b)(2).

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