                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        September 28, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court

 EDWARD JOHN
 VANWOUDENBERG,

       Petitioner-Appellant,
                                                         No. 05-7053
 v.                                                   (D.C. No. CIV-03-540)
                                                          (E.D. Okla.)
 GLYNN BOOHER,

       Respondent-Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Edward John Vanwoudenberg, 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 Vanwoudenberg’s request for a COA and DISMISS.

      Vanwoudenberg was convicted in Oklahoma state court of driving while

under the influence after two or more prior convictions and sentenced to twenty

years’ imprisonment. Having exhausted his state court remedies, Vanwoudenberg

filed a § 2254 petition in the court below arguing that the trial court erred in

failing to give a lesser-included offense instruction, that his trial counsel was
ineffective for failing to request a lesser-included offense instruction, that his

sentence was imposed in violation of state law, and that the cumulative effect of

these errors deprived him of a fair trial.

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

federal court 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 thoroughly reviewing Vanwoudenberg’s claims in light of this demanding

standard, the magistrate judge recommended that Vanwoudenberg’s petition be

dismissed. Over Vanwoudenberg’s objection, the district court adopted the

magistrate judge’s proposed findings and dismissed Vanwoudenberg’s petition.

His request for a COA having been denied below, he now seeks a COA from this

court, presenting the same arguments as he presented below. 1


      1
         Vanwoudenberg’s 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 Vanwoudenberg to show “that
                                                                     (continued...)

                                             2
      On direct appeal, the Oklahoma Court of Criminal Appeals concluded that

the evidence did not support an instruction on the lesser included offense of

driving while impaired. The state court’s determination is not contrary to, nor did

it involve an unreasonable application of, clearly established federal law. See,

e.g., Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (“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.”).

Additionally, the state court held that Vanwoudenberg’s counsel was not

ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984), for declining to request a lesser-included offense instruction. On review

of the record, we conclude that the state court properly applied Strickland.

      Vanwoudenberg’s final claim of error is that the trial court imposed his

sentence in violation of state law. Because Vanwoudenberg had three prior

convictions for driving while under the influence, he was charged with a felony

rather than a misdemeanor, pursuant to 47 Okla. Stat. § 11-902(c). He faced a


      1
        (...continued)
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 Vanwoudenberg a COA, he may not appeal the district court’s
decision absent a grant of COA by this court.

                                           3
twenty year minimum sentence, under 21 Okla. Stat. § 51.1, because he had three

prior non-DUI felonies as well. He argued on appeal that the enhancement

provisions of Title 21 cannot apply to crimes upgraded to felonies under Title 47.

After construing the relevant statutes, the state court rejected Vanwoudenberg’s

argument. Vanwoudenberg reasserts his state law claim on federal habeas review.

“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Vanwoudenberg’s state law arguments are not cognizable in this action. 2

      Because the state court determined that none of Vanwoudenberg’s

arguments demonstrated error, it held that cumulative error does not plague his

conviction or sentence. We agree. Vanwoudenberg’s application for a COA is




      2
         Vanwoudenberg argues in his application for a COA that his sentence
violated the Ex Post Facto Clause because he was sentenced under 21 Okla. Stat.
§ 51, but prior to sentencing that statute was recodified at 21 Okla. Stat. § 51.1.
He also asserts that his sentence was imposed in contravention of the Court’s
holding in Blakely v. Washington, 542 U.S. 296 (2004). Vanwoudenberg failed
to raise these arguments below, and we decline to address them. See, e.g., In re
Walker, 959 F.2d 894, 896 (10th Cir. 1992) (“a federal appellate court does not
consider an issue not passed upon below.”); Barnes v. Scott, 201 F.3d 1292, 1294
n.2 (10th Cir. 2000) (applying Walker in § 2254 case).



                                         4
DENIED and the appeal is DISMISSED.

                                      ENTERED FOR THE COURT


                                      Carlos F. Lucero
                                      Circuit Judge




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