                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 6 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


BILLY LEE HASTINGS,

          Petitioner-Appellant,
                                                        No. 00-6313
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. CIV-99-1533-T)
GARY E. GIBSON, Warden,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


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

unanimously that oral argument would not materially assist 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.

      This case is before the court on Billy Lee Hastings’ pro se request for a

certificate of appealability (“COA”). Hastings seeks a COA so that he can appeal


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of

a § 2254 petition unless the petitioner first obtains a COA). Because Hastings has

not “made a substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses the appeal. See id. § 2253(c)(2).

      Following a jury trial, Hastings was convicted in Oklahoma state court on

the following four charges: (1) possession of cocaine; (2) possession of a weapon

during commission of a felony; (2) possession of a weapon after former

conviction of a felony; and (4) shooting with intent to kill. Hastings was

sentenced to four consecutive life sentences. On direct appeal to the Oklahoma

Court of Criminal Appeals (“OCCA”), Hastings raised the following two claims

of error: (1) his convictions for both possession of a weapon during the

commission of a felony and possession of a weapon after former conviction of a

felony violated the prohibition against double jeopardy; and (2) he was denied a

fair trial as a result of prosecutorial misconduct. The OCCA considered and

rejected both of these claims on the merits in a summary opinion and an order

denying rehearing. Hastings then reasserted both claims in his § 2254 habeas

corpus petition.

      The district court referred Hastings’ petition to a magistrate judge for

initial proceedings pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge


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began by noting that Hastings would be entitled to habeas relief only if he could

establish that the opinions of the OCCA rejecting his claims were “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Applying those standards, as elucidated in the Supreme Court’s recent decision in

Williams v. Taylor, 120 S. Ct. 1495, 1518-23 (2000), the magistrate judge

concluded that both of Hastings’ habeas claims failed.

      As to Hastings’ double jeopardy claim, 1 the magistrate judge recognized

that the central question is whether the sentencing court has imposed greater

punishment than the legislature intended. See Missouri v. Hunter, 459 U.S. 359,

365 (1983). In determining whether the state legislature intended to prohibit

multiple punishments for a single criminal incident, federal courts are “bound by

a state court’s determination of the legislature’s intent.” Cummings v. Evans, 161

F.3d 610, 615 (10th Cir. 1998). In that regard, the magistrate judge observed that

the OCCA had previously determined that the two statutory crimes at issue here


      1
        In his habeas petition and arguments before the district court, Hastings
limited his double jeopardy claim to the assertion that his convictions on both
weapon-possession charges violated double jeopardy principles. For the first time
in his brief on appeal, Hastings asserts that his convictions for possession of
cocaine and possession of a weapon during the commission of a felony also
violate the prohibition against double jeopardy. This court will not consider this
newly-raised issue, however, because it was not included in Hastings’ habeas
petition or presented to the district court. See Scott v. Hern, 216 F.3d 897, 908
n.5 (10th Cir. 2000).

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are separate and distinct offenses and that convictions for both crimes in a single

proceeding does not violate either state or federal prohibitions against double

jeopardy. See Posey v. State, 805 P.2d 687, 688 (Okla. Crim. App. 1991).

Because that decision was not contrary to or an unreasonable interpretation of

Supreme Court precedent, the magistrate judge concluded she was bound by the

OCCA determination of state legislative intent. 2

      The magistrate judge similarly concluded that Hastings’ claim based on

prosecutorial misconduct was without merit. The magistrate judge began by

noting that “[p]rosecutorial misconduct does not warrant federal habeas relief

unless the conduct complained of is so egregious as to render the entire

proceedings against the defendant fundamentally unfair.” Smallwood v. Gibson,

191 F.3d 1257, 1275 (10th Cir. 1999). In this particular case, the evidence of

Hastings’ guilt was strong. See id. (holding that strong evidence of guilt weighs

against finding fundamental unfairness). Furthermore, the prosecution argument


      2
         On appeal, Hastings asserts that the district court erred in failing to
consider his argument that punishment for both weapons charges violated Okla.
Stat. tit. 21, § 11. In contrast to Hastings’ assertion, however, the magistrate
judge thoroughly analyzed the § 11 claim and concluded that to the extent this
state-law claim could support a § 2254 habeas petition, the claim was without
merit. See Magistrate Judge’s Report & Recommendation at 6 n.4. Furthermore,
in denying Hastings’ petition for rehearing, the OCCA conducted an analysis
under § 11 and concluded that the legislature did not intend to prohibit multiple
punishments under the two statutes at issue in this case. As noted above, this
finding of state legislative intent is binding on federal courts in resolving
Hastings’ double jeopardy claims.

                                         -4-
was an “invited response” to arguments made by Hastings’ counsel during closing

arguments. Read in the context of Hastings’ arguments, the magistrate judge

concluded that the OCCA’s determination that the prosecutor’s comments did not

render Hastings’ trial fundamentally unfair was neither contrary to, nor an

unreasonable application of, settled Supreme Court precedent.

      Upon de novo review of the magistrate judge’s report and recommendation,

Hastings’ objections thereto, and the entire file, the district court adopted the

report and recommendation and denied Hastings’ § 2254 habeas petition.

      As noted above, Hastings must obtain a COA before he can appeal the

district court’s denial of his § 2254 habeas petition. See 28 U.S.C. §

2253(c)(1)(A). Hastings is entitled to a COA only upon making a “substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). He can make

this showing by demonstrating that the issues raised are debatable among jurists, a

court could resolve the issues differently, or that the questions presented deserve

further proceedings. See Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).

This court has reviewed Hastings’ request for a COA and accompanying brief,

along with the magistrate judge’s report and recommendation, the district court’s

order, and the entire record on appeal. That close review reveals that the district

court’s resolution of Hastings’ petition is not debatable, subject to an alternate

resolution, or deserving of further proceedings. Accordingly, this court DENIES


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Hastings’ request for a COA for substantially those reasons set forth in the

magistrate judge’s report and recommendation dated May 31, 2000, and the

district court’s order dated September 5, 2000. Hastings’ appeal is, therefore,

DISMISSED. See 28 U.S.C. § 2253(c).

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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