                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 27, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 NATHAN OZELL GRIFFIN,

          Petitioner-Appellant,
 v.                                                      No. 08-5150
 RANDY WORKMAN, Warden,                        (D.C. No. CV-04-345-JHP-PJC)
 Oklahoma State Penitentiary,                         (N. D. Oklahoma)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.




      Nathan Griffin, an Oklahoma state prisoner appearing pro se, 1 seeks a

certificate of appealability (“COA”) in order to challenge the district court’s

denial of his 28 U.S.C. § 2254 application for federal habeas relief. Because

Griffin has failed to satisfy the standards for the issuance of a COA, we deny his

request and dismiss the matter.



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        As he is proceeding pro se, we have construed Griffin’s pleadings
liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
                                           I.

      Griffin was tried by jury and found guilty of driving while under the

influence of intoxicating liquor, in violation of Okla. Stat. tit. 47, § 11-902(A),

and possession of a firearm after former conviction of a felony, in violation of

Okla. Stat. tit. 21, § 1283. Based upon jury recommendations, Griffin was

sentenced to ten days in jail with a $250 fine on the driving under the influence

conviction, and thirty years’ imprisonment with a $5000 fine on the firearm

possession conviction.

      On direct appeal, Griffin claimed: (1) prosecutorial misconduct during

cross-examination of Griffin and during closing argument; (2) error by the trial

court for using Griffin’s prior convictions in sentencing; and (3) error by the trial

court for not applying an Oklahoma statutory sentencing change retroactively.

The Oklahoma Court of Criminal Appeals affirmed Griffin’s convictions and

sentences. Griffin v. Oklahoma, No. F-2001-1312 (Okla. Crim. App. Mar. 21,

2003). Griffin did not seek state post-conviction collateral relief.

      Before the federal district court, Griffin raised the same claims in his §

2254 petition as he raised in his direct appeal to the Oklahoma courts. The

district court denied Griffin’s petition. Griffin has since filed a timely notice of

appeal, as well as an application for a COA.

                                          II.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

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336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues 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). In order to make that showing, a prisoner must

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. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted).

                                          III.

      Griffin seeks a COA with respect to the three issues raised in his federal

habeas petition. For the reasons that follow, we conclude that he has failed to

satisfy the standards for issuance of a COA with respect to any of these issues.

                             Prosecutorial Misconduct

      Griffin argues that prosecutorial misconduct deprived him of due process

and a fair trial, based on the prosecutor’s comments during closing argument and

the prosecutor’s cross-examination questioning of Griffin. Griffin raised the

same claims of prosecutorial misconduct in his direct appeal. We apply the

standard articulated in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), to claims

of prosecutorial misconduct when a petitioner does not allege the prosecutor’s

argument directly affected a specific constitutional right. Under Donnelly, habeas

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relief is available for prosecutorial misconduct only when the misconduct is so

egregious that it renders the entire trial fundamentally unfair. 416 U.S. at 642-48.

Inquiry into the fundamental fairness of a trial requires examination of the entire

proceedings. Id. at 643.

      The district court found that the Oklahoma Court of Criminal Appeals

correctly rejected Griffin’s prosecutorial misconduct claims based on its finding

that it found no error in the prosecution’s statements. The district court noted the

strength of the evidence against Griffin at trial, which included the testimony of

three state troopers and the firearm and casings recovered from or near Griffin’s

vehicle. After review of the evidence, the district court found that there was no

reasonable probability that the jury’s verdict and its recommended sentence were

rendered fundamentally unfair by prosecutorial misconduct. See United States v.

Young, 470 U.S. 1, 11-12 (1985) (concluding that a criminal conviction should

not be readily overturned on the basis of a prosecutor’s comments alone;

statements must be viewed in context of entire proceeding to determine whether

conduct affected fairness of trial). After examining the record on appeal, we

agree with the district court, and conclude that Griffin is not entitled to a COA on

this claim.

                                Matters of State Law

      Griffin’s final two claims focus exclusively on the proper interpretation of

Oklahoma state law. Griffin claims the trial court erred by permitting the

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prosecution to use contemporaneous felonies to establish both an element of the

crime charged and the basis for sentence enhancement. Griffin also claims that an

Oklahoma statutory sentencing amendment, which lowered the minimum sentence

for his firearm possession offense should have been applied retroactively to

reduce his sentence.

      As the Supreme Court emphasized in Estelle v. McGuire, 502 U.S. 62, 67-

68 (1991), however, “it is not the province of a federal habeas court to reexamine

state court determinations on state-law questions.” Rather, the Court stated, “[i]n

conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.” Id. at

68. Because Griffin’s claims involve purely matters of state law, they cannot

serve as grounds for federal habeas relief.

      A petitioner may also be entitled to habeas relief if he shows that the

alleged violations of state law resulted in a denial of due process. Hicks v.

Oklahoma, 447 U.S. 343, 346 (1980). The district court found, however, and

after examining the record on appeal we agree, that Griffin has not demonstrated

that he was convicted or sentenced in violation of Oklahoma’s laws. Griffin has

not shown, by clearly established Supreme Court precedent, that Oklahoma’s

decision on direct appeal resulted in any fundamental unfairness or otherwise

denied him due process of law. Griffin is not entitled to a COA on these claims.




                                          5
                                        IV.

      After carefully reviewing Griffin’s appellate pleadings and the record on

appeal, we conclude he has failed to establish that “reasonable jurists could

debate whether” his habeas petition “should have been resolved in a different

manner or . . . w[as] adequate to deserve encouragement to proceed further.”

Slack, 529 U.S. at 484.

      We therefore DENY Griffin’s request for a COA and DISMISS the matter.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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