                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                      April 10, 2007
                                     TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

 M IC HAEL EUGENE LAM B, SR.,

                  Petitioner - A ppellant,

          v.                                             No. 06-6222
                                                  (D. Ct. No. 06-CV-45-W )
 OKLAHO M A COUN TY DISTRICT                            (W .D. Okla.)
 C OU RT; STA TE O F O K LA H OMA,

                  Respondents - Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.




      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

      M ichael Lamb, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) in order to challenge the District Court’s


      *
        This order is not binding precedent except under the doctrines of law of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 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
denial of his petition for federal habeas relief under 28 U.S.C. § 2254. W e

exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because M r. Lamb has failed

to satisfy the standards for the issuance of a CO A, we deny his request and

dismiss the matter.

                                I. BACKGROUND

      M r. Lamb w as convicted on two counts of shooting with intent to kill under

Oklahoma law . He appealed to the Oklahoma Court of Criminal Appeals

(“OCCA”), asserting five claims: 1) the evidence presented at trial is insufficient

to sustain his convictions; 2) the trial court allowed the introduction of improper

testimony and photographs; 3) the prosecution made misstatements of law and

fact; 4) his sentence is excessive; and 5) these trial errors amount to cumulative

error. In a summary opinion, the OCCA affirmed the convictions, addressing

each of M r. Lamb’s claims on the merits. M r. Lamb then filed a petition for

habeas relief in federal district court, requesting a reversal of his convictions or a

modification of his sentence. See 28 U.S.C. § 2254. In a thorough report and

recommendation, the magistrate judge reviewed each of M r. Lamb’s claims on the

merits and recommended that the District Court deny his petition. After a de

novo review of the record, the court adopted the magistrate’s report and denied

the petition. In a subsequent order, the court also rejected M r. Lamb’s request for

a COA under 28 U.S.C. § 2253(c)(1). See Fed. R. App. P. 22(b)(1). M r. Lamb

now petitions this Court for a COA in order to challenge the District Court’s

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order denying his habeas petition.

                                 II. D ISC USSIO N

      Before a state prisoner may appeal from a final order in a § 2254 habeas

corpus proceeding, he must obtain 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.” 28 U.S.C. § 2253(c)(2). To make that showing, M r.

Lamb m ust 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. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), state

court decisions resolving federal constitutional claims on the merits are entitled to

deference. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding

that AEDPA’s “deferential treatment of state court decisions [under 28 U.S.C.

§ 2254(d)] must be incorporated into our consideration of a habeas petitioner’s

request for a COA”). Specifically, when a state court has decided a petitioner’s

claims on the merits, we may grant relief only if the 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). M oreover, we may not hold

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that a state court has unreasonably applied federal law “simply because we

conclude in our independent judgment that the state court applied the law

erroneously or incorrectly.” Welch v. Sirmons, 451 F.3d 675, 682 (10th Cir.

2006) (quotation omitted). Rather, “we must be convinced that the [state court’s]

application [of federal law] was also objectively unreasonable.” Id. (quotation

omitted). W hen a state court issues a summary opinion, as in the case before us,

we “focus on its result rather than any reasoning.” Stevens v. Ortiz, 465 F.3d

1229, 1235 (10th Cir. 2006).

      Although the O CCA did not refer to federal law in resolving each of M r.

Lamb’s claims, it applied to each claim a state standard “equally or more

favorable to [M r. Lamb] relative to the federal standard.” Harris v. Poppell, 411

F.3d 1189, 1196 (10th Cir. 2005). As a result, we treat the state court’s

adjudication of M r. Lamb’s federal constitutional claims as an adjudication on the

merits and accord its decision AEDPA deference. See id. M r. Lamb must

therefore show that reasonable jurists could debate the District Court’s

application of AEDPA deference. In other words, he must demonstrate that

reasonable jurists could debate whether the O klahoma court’s resolution of these

claims was unreasonable or contrary to clearly established federal law. See

Dockins, 374 F.3d at 937–38.

A.    Sufficiency of the Evidence

      M r. Lamb argues that the state presented insufficient evidence to establish

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his “intent to kill” the two victims under Oklahoma law, Okla. Stat. tit. 21,

§ 652(A ), 1 a violation of his due process rights. In a habeas proceeding, we

review the sufficiency of the evidence “in the light most favorable to the

prosecution” and ask whether “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). W e have recognized that “[t]his standard of review

respects the jury’s responsibility to weigh the evidence and to draw reasonable

inferences from the testimony presented at trial.” Dockins, 374 F.3d at 939

(citing Jackson, 443 U.S. at 319). In other words, it “impinges upon ‘jury’

discretion only to the extent necessary to guarantee the fundamental protection of

due process of law.” Jackson, 443 U.S. at 319.

      Applying this standard, we conclude that a rational trier of fact could have

found the requisite “intent to kill” beyond a reasonable doubt. Although M r.

Lamb testified that he shot the gun to “scare” men threatening both him and his

son, the record contains sufficient evidence to satisfy the intent-to-kill element.

In fact, M r. Lamb admitted at trial that he intended to kill if necessary to defend

himself or his son. Furthermore, to the extent M r. Lamb is arguing that the state




      1
       The statute states: “Every person who intentionally and wrongfully shoots
another w ith or discharges any kind of firearm, with intent to kill any person . . .
shall upon conviction be guilty of a felony punishable by imprisonment in the
State Penitentiary not exceeding life.” O kla. Stat. tit. 21, § 652(A)

                                          -5-
failed to prove he did not act in self-defense (or in defense of his son), 2 this

argument also fails. The record contains testimony by several individuals that

supports the jury’s finding that M r. Lamb w as not acting in defense of himself or

his son. W itnesses testified, for example, that M r. Lamb shot one of the victims

in the back, that one of the victims ran away once he heard M r. Lamb had a gun,

and that neither victim had been involved in any altercation with M r. Lamb or his

son. In short, based on our review of the record, a rational fact-finder could have

found M r. Lamb guilty beyond a reasonable doubt on both counts of shooting

with intent to kill. W e therefore conclude that the O CCA’s resolution of M r.

Lamb’s evidentiary challenge was not contrary to or an unreasonable application

of federal law, 28 U.S.C. § 2254(d)(1), or an unreasonable determination of the

facts, 28 U.S.C. § 2254(d)(2). See Dockins, 374 F.3d at 939 (recognizing that this

Court has yet to decide whether sufficiency of the evidence on habeas review

presents a question of law or fact).

B.    Admission of Photographs and Testimony

      M r. Lamb also contends that the admission of certain photographs and parts

of the victims’ testimony was more prejudicial than probative, improperly

influencing the jury and resulting in an excessive sentence. Specifically, he

asserts that his constitutional rights were violated by the admission of two

      2
         Under state law, when the defendant adequately raises self-defense at
trial, the burden shifts to the state to prove the defendant did not act in self-
defense. See Howell v. State, 882 P.2d 1086, 1092 (Okla. Crim. App. 1994).

                                           -6-
photographs (showing one of the victims in a hospital bed) and testimony from

both victims regarding medical complications. Because he does not allege a

violation of a specific constitutional right, he is entitled to habeas relief “only if

the alleged error was so grossly prejudicial that it fatally infected the trial and

denied the fundamental fairness that is the essence of due process.” Willingham

v. M ullin, 296 F.3d 917, 928 (10th Cir. 2002) (quotation omitted). Furthermore,

we are mindful that “[f]ederal habeas review is not available to correct state law

evidentiary errors; rather it is limited to violations of constitutional rights.”

Thornburg v. M ullin, 422 F.3d 1113, 1128–29 (10th Cir. 2005). W e therefore

review the OCCA’s determination of this claim to determine whether its decision

is a reasonable application of federal due process principles. In this context, this

Court has held that federal due process “will be satisfied only if the probative

value of [the challenged] evidence is . . . greatly outweighed by the prejudice

flowing from its admission.” Welch, 451 F.3d at 688 (quotation omitted)

(alterations in original).

      The OCCA determined that the photographs were relevant to proving the

charged offense of shooting with intent to kill. In particular, the court noted that

the photographs were relevant to showing the nature, extent, and location of the

victim’s gunshot wound and that they did not show any complications arising

from the wound. Consequently, their probative value was not outweighed by their

prejudicial effect. The D istrict Court agreed that the photographs were not so

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grossly prejudicial as to infect the trial with unfairness. And we agree. As the

District Court noted, we have denied habeas relief in a factually similar case. See

Willingham, 296 F.3d at 928–29 (rejecting petitioner’s argument that victim’s

photographs entitled him to habeas relief when the OCCA had held that the

photographs w ere relevant to the intent-to-kill element of the offense); see also

Thornburg, 422 F.3d at 1128–29 (holding that OCCA’s decision affirming trial

court’s admission of “disturbing” photographs of the victim was not contrary to or

an unreasonable application of federal law ); Smallwood v. Gibson, 191 F.3d 1257,

1274–75 (10th Cir. 1999) (holding that photographs did not render proceedings

fundamentally unfair in light of their probative nature, the nature of the crime,

and evidence of the defendant’s guilt).

      Similarly, the admission of testimony by both victims regarding their

medical complications did not render the trial fundamentally unfair. Again, the

OCCA concluded that the probative value of this evidence was not outweighed by

the danger of prejudice, noting the testimony’s relevance in proving that M r.

Lamb shot the victims w ith the requisite intent to kill. After review ing this

testimony, which included the victims’ accounts of complications resulting from

the gunshot wounds (namely, a “near coma” and paralysis), the D istrict Court

concluded that the admission of the testimony was not fundamentally unfair and

the OCCA’s determination was reasonable. Because the probative value of the

testimony was not greatly outweighed by any prejudicial effect, we agree that the

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OCCA’s resolution of this claim was reasonable and in accordance with federal

law. See Payne v. Tennessee, 501 U.S. 808, 819 (1991) (“[T]he assessment of

harm caused by the defendant as a result of the crime charged has understandably

been an important concern of the criminal law , both in determining the elements

of the offense and in determining the appropriate punishment.”).

      Finally, to the extent M r. Lamb argues that admission of this testimony

violates O klahoma law prohibiting the admission of “victim impact evidence” in

“unenhanced, non-capital crimes,” see Perryman v. State, 990 P.2d 900, 905

(O kla. Crim. App. 1999), his argument fails. The OCCA considered this

argument and determined that the testimony did not constitute victim impact

evidence under state law. Because this is a state law question, we may not

consider it or question the OCCA’s decision. M anlove v. Tansy, 981 F.2d 473,

478 (10th Cir. 1992).

C.    Prosecutorial M isconduct

      M r. Lamb also seeks to challenge his convictions on the ground that the

prosecutor made misstatements regarding the law and the evidence during closing

arguments. In particular, he identifies: 1) a statement that the jury should subject

his credibility to more scrutiny than other witnesses because of his interest in the

outcome of the trial; 2) factual misstatements regarding his conduct and his

testimony; and 3) a statement implying that certain evidence had been withheld

from the jury. The OCCA considered each of these statements and concluded

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that, although the prosecutor’s comments were improper in some instances, they

did not affect the outcome of the trial. The D istrict Court held that the O CCA’s

determ ination w as a reasonable application of federal law.

      Like the evidentiary claims discussed above, M r. Lamb’s claim concerning

prosecutorial misconduct is properly characterized as a due process claim:

“W here prosecutorial misconduct does not implicate a specific constitutional

right, improper remarks require reversal of a state conviction only if the remarks

so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006) (quotation

omitted). In applying this demanding standard, “not every improper or unfair

remark made by a prosecutor will amount to a federal constitutional deprivation.”

Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000); see also Darden v.

Wainwright, 477 U .S. 168, 181 (1986) (“[I]t is not enough that the prosecutors’

remarks were undesirable or even universally condemned.” (quotation omitted));

Bland, 459 F.3d at 1024 (“The ultimate question is w hether the jury was able to

fairly judge the evidence in light of the prosecutors’ conduct.”). To determine

whether a prosecutor’s improper statements violate a petitioner’s due process

rights, “we examine the entire proceeding, ‘including the strength of the evidence

against the petitioner, both as to guilt at that stage of the trial and as to moral

culpability at the sentencing phase’ as well as ‘[a]ny cautionary steps— such as

instructions to the jury— offered by the court to counteract improper remarks.’”

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Id. (quoting Le v. M ullin, 311 F.3d 1002, 1013 (10th Cir. 2002)) (alteration in

original).

      Although our review of the record confirms that the prosecutor made

improper remarks, the remarks do not rise to the level of a due process violation.

The trial court immediately corrected any misstatements regarding M r. Lamb’s

credibility and evidence not before the jury. See Boyde v. California, 494 U.S.

370, 384 (1990) (“Arguments of counsel which misstate the law are subject to

objection and to correction by the court.”). M oreover, the evidence of M r.

Lamb’s guilt was substantial, and the jury was instructed to consider only witness

testimony, attorneys’ stipulations, and exhibits as evidence. See Bland, 459 F.3d

at 1015 (“The jury is presumed to follow its instructions, even when there has

been misleading argument.” (internal citation omitted)). In light of the substantial

evidence and the jury instructions, the prosecutor’s misstatements concerning the

evidence did not render the trial fundamentally unfair. See M alicoat v. M ullin,

426 F.3d 1241, 1256 (10th Cir. 2005) (concluding that improper statements by

prosecutor did not violate defendant’s due process rights in light of “the strength

of the state’s case and the fact that the majority of the prosecutor’s argument was

based upon evidence in the record”); Hooper v. M ullin, 314 F.3d 1162, 1173 (10th

Cir. 2002) (concluding that prosecutor’s improper comments regarding the

evidence did not violate due process when the evidence was substantial and the

trial court instructed the jury to base its decision only on the evidence).

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      Considering the prosecutor’s statements in the context of the entire

proceeding, we therefore conclude that they did not compromise the jury’s ability

“to fairly judge the evidence in light of the prosecutor’s conduct.” Bland, 459

F.3d at 1024. Reasonable jurists could not debate that the OCCA’s determination

that none of the prosecutor’s remarks could have influenced the jury’s verdict was

a reasonable application of federal law. Smallwood, 191 F.3d at 1276 (holding

that state court’s decision was reasonable when “none of the prosecutor’s

comments were of sufficient magnitude to influence the jury’s decision”).

D.    Excessive Sentence

      M r. Lamb also claims his concurrent sentences of 18 and 22 years are

excessive and therefore violate the Eighth Amendment’s Cruel and Unusual

Punishments Clause. To determine whether a sentence violates the Eighth

Amendment, we must determine whether the sentence is grossly disproportionate

to the crime committed. See United States v. Gurule, 461 F.3d 1238, 1247 (10th

Cir. 2006). In making this determination, we consider various factors, including

the seriousness of the crime, the fit between the sentence and the crime, and the

legislative determination of the appropriate sentence range. Hawkins v. Hargett,

200 F.3d 1279, 1284–85 (10th Cir. 1999). The O CCA determined that M r.

Lamb’s sentence is well within the state statutory range for a single conviction of

shooting with intent to kill. Given this determination and the seriousness of M r.

Lamb’s crimes, the concurrent sentences are clearly proportionate to his crimes.

                                        -12-
W e therefore conclude that the OCCA’s resolution of this claim was reasonable.

E.    Cumulative Error

      Lastly, M r. Lamb claims he is entitled to habeas relief on the basis of

cumulative error. M r. Lamb notes that both the OCCA and the D istrict Court

identified specific “errors” made by the prosecutor at trial. As we explain above,

although the prosecutor made improper remarks, these remarks do not rise to the

level of constitutional errors. Consequently, because M r. Lamb has not

established a single constitutional error, he cannot logically argue that the

aggregate of two or more constitutional errors entitles him to relief. See Parker v.

Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (“Because we find no single

constitutional error, we also must reject [the petitioner’s] argument that

cumulative error resulted.”); Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir.

1999) (noting that a cumulative error argument “does not merit review given the

lack of any discernible constitutional error”). Hence, we conclude that the

OCCA’s resolution of this claim was reasonable as w ell.

                                  C ON CLU SIO N

      Because we conclude that reasonable jurists would agree with the District

Court’s disposition of this matter, we deny M r. Lamb’s request for a COA and

dismiss his appeal. In addition, because M r. Lamb has not advanced “a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal,” M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997),

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we likewise deny M r. Lamb’s request for permission to proceed on appeal in

form a pauperis.

                                     ENTERED FOR TH E CO UR T,



                                     Deanell Reece Tacha
                                     Circuit Judge




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