                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                               September 5, 2007
                                  TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                  Clerk of Court

 JO E ED W A R D STR ATM O EN ,

               Petitioner - A ppellant,                No. 06-7128
          v.                                            E.D. Okla.
 RON W ARD, W arden,                             (D.C. No. CIV-04-279-S)

               Respondent - Appellee.



                              ORDER DENYING
                      CERTIFICATE O F APPEALABILITY
                       A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Joe Edw ard Stratmoen, an Oklahoma state prisoner appearing pro se, 1 filed

a habeas petition pursuant to 28 U.S.C. § 2254. The district court denied the

petition and Stratmoen’s application for a Certificate of Appealability (“COA”).



      1
       Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
Stratmoen renews his COA request here. W e also decline to issue a CO A and

dismiss his application.

                                  I. Background

      Following a jury trial in Oklahoma state court, Stratmoen was convicted of

unlawful possession of a controlled substance (Count 1) and possession of a

weapon while committing a felony (Count 2). After a separate sentencing trial,

the jury recommended sentences of thirty years imprisonment on Count 1 and

twenty years imprisonment on Count 2. The trial court followed the jury’s

sentencing recommendations.

      On direct appeal to the O klahoma Court of Criminal Appeals (“O CCA”),

Stratmoen argued, inter alia, his sentence on Count 2 was improperly enhanced.

The court agreed and adjusted the sentence from twenty years to two.

      Stratmoen then filed a petition for post-conviction relief in the state trial

court arguing his trial counsel was constitutionally ineffective during the

sentencing phase of the trial. The court granted the petition and ordered a new

sentencing hearing. This time the jury recommended a sentence of life

imprisonment on Count 1 and ten years imprisonment on Count 2. The trial court

again followed the jury’s recommendations and ordered the sentences to run

concurrently. Stratmoen again appealed to the OCCA. The OCCA affirmed the

sentence on Count 1 but again modified the sentence on Count 2 to two years

imprisonment.

                                         -2-
      Stratmoen then filed a § 2254 petition in the federal district court. He alleged

1) the state trial court failed to instruct the jury on the state’s burden of proof at the

sentencing hearing, or, in the alternative, the state adduced insufficient evidence of

his prior convictions; 2) the state trial court improperly instructed the jury on the

minimum range of punishment as to Count 1; and 3) the state trial court improperly

instructed the jury on the general range of punishment as to Count 2. The federal

district court determined these claims were mirror images of claims Stratmoen

successfully argued in his first direct appeal and, since the state trial court granted

all the relief available for these claims -- a new sentencing hearing -- those claims

were moot. Stratmoen also claimed his appellate counsel in his first direct appeal

was constitutionally ineffective. The district court determined this claim was also

moot because it was raised in his petition for post-conviction relief, in which the

state trial court granted Stratmoen a second sentencing hearing. Stratmoen further

claimed his sentence on Count 2 was not subject to enhancement. The district court

again noted the similarity between this claim and a claim asserted in his second

direct criminal appeal. It determined the OCCA granted all the relief Stratmoen was

entitled to by reducing the sentence to two years; thus, the district court reasoned

this claim was also moot.

      Stratmoen also claimed: 1) the state trial court was w ithout authority to

empanel a second jury to rehear the sentencing phase of his trial; 2) the state trial

court erred in refusing to instruct the jury to disregard an officer’s volunteered

                                             -3-
testimony that the search warrant was executed because a “Joe” was dealing

methamphetamine out of the house; and 3) the state trial court sentenced him to

excessive terms of imprisonment. The federal district court concluded these claims

did not rise to the level of a violation of “clearly established Federal law, as

determined by the Supreme Court of the U nited States” because the issues w ere

governed entirely by state law and did not implicate federal constitutional

protections. See 28 U.S.C. § 2254(d).

      Finally, Stratmoen challenged the prosecutor’s statement during closing

argument mentioning the possibility of parole. Stratmoen claimed, as he had in his

direct criminal appeal, the comment prejudiced the sentencing hearing. Recognizing

“[t]he relevant question is whether the prosecutor[’s] comments so infected the trial

with unfairness as to make the resulting conviction a denial of due process,” the

district court determined Stratmoen could not demonstrate prejudice because his

counsel also referenced parole during closing argument. See Darden v. Wainwright,

477 U.S. 168, 181 (1986) (quotations omitted).

                           II. Certificate of Appealability

      A COA is a jurisdictional pre-requisite to our review. M iller-El v. Cockrell,

537 U .S. 322, 336 (2003). W e will issue a COA only if Stratmoen makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists could

debate whether . . . the petition should have been resolved [by the federal district

                                            -4-
court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). W e review the district court’s factual findings for clear error

and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         None of Stratmoen’s claims merit a COA. The state courts granted him all

the relief to which he was entitled for a number of claims, thereby rendering them

moot. 2 Other allegations failed to rise to the level of a federal violation appropriate

for habeas review. Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999)

(state law evidentiary errors not reviewable); 3 Phillips v. Ferguson, 182 F.3d 769,




         2
        In an attempt to escape mootness, Stratmoen generally references the
“capable of repetition, yet evading review” exception. To satisfy this exception,
“there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the
same controversy will recur involving the same complaining party.” M urphy v.
Hunt, 455 U.S. 478, 482 (1982). It is unlikely Stratmoen will find himself in
another criminal litigation claiming the same errors he alleges here. Therefore,
the exception does not apply.
         3
        W hile a state court’s evidentiary rulings are not generally reviewable in a
federal habeas action, review can be proper if evidentiary rulings render state
proceedings so fundamentally unfair as to violate due process. Williamson v.
Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997). In this case, as the district court
noted, the challenged evidentiary ruling could not render the procedure
fundamentally unfair because the trial court sustained Stratmoen’s objection
thereto and ordered the testimony stricken from the record. See Slaughter v.
State, 950 P.2d 839, 863, 869 (Okla. Crim. App. 1997) (“W hen a trial court
sustains an objection, most error is cured.”).

                                           -5-
772-73 (10th Cir. 1999) (state post-conviction procedural rules not reviewable); 4

      4
          On appeal, Stratmoen argues his due process rights were violated when
the state trial court imposed a harsher sentence after the second sentencing phase.
He claims the harsher sentence was imposed vindictively to punish him for
seeking post conviction relief. Perhaps because Stratmoen did not make this
claim clear in his habeas petition, the federal district court did not address it.
        “[T]he due process guarantee precludes increased sentences when the
increase is motivated by vindictiveness on the part of the sentencing judge.”
M acomber v. Hannigan, 15 F.3d 155, 156 (10th Cir. 1994) (citing North Carolina
v. Pearce, 395 U.S. 711 (1969)); Texas v. M cCullough, 475 U.S. 134, 138 (1986)
(“[It is the] vindictiveness of a sentencing judge [that] is the evil the Court sought
to prevent [in Pearce.]’”). In some instances, vindictiveness is assumed when the
sentence is increased following a successful appeal or motion for post-conviction
relief; in such a case, “Pearce requires the sentencing judge to place on the record
nonvindictive reasons supporting the increase.” M acomber, 15 F.3d at 156.
        The presumption of vindictiveness does not apply to the circumstances of
Stratmoen’s case. The Supreme Court has narrowed the Pearce presumption so
that it operates only in those cases presenting vindictiveness concerns.
M cCullough, 475 U.S. at 138. Thus, in M cCullough, the Supreme Court declined
to apply the Pearce presumption when “different sentencers assessed the varying
sentences [the defendant] received.” Id. at 140. In addition, the Supreme Court
declined to apply the presumption in a case where the defendant was sentenced by
tw o different juries, each with final sentencing authority. Chaffin v.
Stynchcombe, 412 U.S. 17, 19-20, 28 (1977). Although the second jury sentenced
the defendant to a more lengthy sentence, the Supreme Court held “where
improper and prejudicial information regarding the prior sentence is withheld,
there is no basis for holding that jury resentencing poses any real threat of
vindictiveness.” Id. at 28.
        Two different sentencers effectively passed upon the appropriate sentence
for Stratmoen’s crimes, the jury at his first sentencing trial and the jury at his
second. Although Stratmoen’s trial judge had discretion to adjust his sentence, he
did not exercise that discretion at either sentencing. Rather, the trial judge
accepted the jurys’ assessments. Thus, Stratmoen’s effective sentencer at the
second trial was the second jury. Because the second jury was without any
knowledge of Stratmoen’s prior sentence, it simply could not have acted
vindictively. See Chaffin, 412 U.S. at 28.
        In the absence of a presumption of vindictiveness, Stratmoen bears the
burden to demonstrate actual vindictiveness. United States v. M edley, 476 F.3d
835, 839 (10th Cir. 2007). W e agree with the OCCA that no such evidence exists
in the record.

                                           -6-
Shafer v. Stratton, 906 F.2d 506, 510 (10th Cir. 1990) (state sentencing law not

reviewable). Stratmoen also failed to demonstrate prejudice on his prosecutorial

misconduct claim. Darden, 477 U.S. at 181. The federal district court’s thorough

and well-reasoned order of dismissal is not reasonably debatable. Slack, 529 U.S. at

484. Stratmoen’s application for a COA is DENIED. DISM ISSED.



                                                Entered for the Court

                                                Terrence L. O’Brien
                                                Circuit Judge




      Furthermore, if w e were to apply the presumption of vindictiveness in this
case, we think the trial judge here satisfied his duty to state his reasons for the
harsher sentence. The judge relied heavily on the second jury’s recommendation
and appeared prepared to accept a lower sentence if the jury so advised. [R . Vol.
V at 23-25; Vol. II at 37-38; Vol. IV at 232-33]
      Stratmoen’s allegation of vindictiveness does not “deserve encouragement
to proceed further.” Slack, 529 U.S. at 484.


                                          -7-
