                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 30 2005
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


 HENRY G. WEST,

          Petitioner-Appellant,
                                                        No. 04-6305
 v.                                                     (W.D. Okla.)
                                                  (D.Ct. No. 04-CV-154-F)
 MIKE ADDISON, Warden,

          Respondent-Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      Appellant Henry Glen West, an Oklahoma state inmate appearing pro se,

appeals the district court’s decision denying him a certificate of appealability and

dismissing his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. In his

petition, Mr. West challenges his numerous convictions, but not his sentences.

We deny Mr. West’s request for a certificate of appealability and dismiss his

appeal.
       The procedural history surrounding Mr. West’s state convictions, sentences,

and direct appeal are more fully outlined in the federal magistrate judge’s Report

and Recommendation (Recommendation). 1 In short, the State of Oklahoma

charged Mr. West with two counts of assault and battery with intent to kill;

forcible oral sodomy; first degree rape; second degree burglary; robbery with

firearms; attempting to kill another; assault with a dangerous weapon; and two

counts of shooting with intent to kill. A jury convicted him on all counts.



       Following the trial, Mr. West raised three issues to the Oklahoma Court of

Criminal Appeals, namely: 1) The trial court’s failure to instruct the jury on the

defense of automatism denied Mr. West the benefit of this statutory defense

supported by the evidence; 2) The trial court erroneously instructed the jury to

consider Mr. West’s flight as substantive evidence of guilt; and 3) The State

failed to prove beyond a reasonable doubt the state-of-mind elements of the


       1
          While Mr. West did not file for post-conviction relief, the government, in
response to his habeas petition, acknowledged he exhausted his state court remedies with
respect to the three issues raised in his habeas petition. This is because the three issues
Mr. West raised in his federal habeas petition are identical to the three issues raised and
addressed in his direct appeal to the Oklahoma Court of Criminal Appeals. See Bear v.
Boone, 173 F.3d 782, 784 (10th Cir. 1999) (holding “the exhaustion requirement is
satisfied if the federal issue has once been properly presented to the highest court of the
state”) (quotation marks and citation omitted); Dever v. Kansas State Penitentiary, 36
F.3d 1531, 1534-35 (10th Cir. 1994) (explaining “[t]he exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court, either
by direct review of the conviction or in a postconviction attack”).

                                             -2-
charged offenses. Unsuccessful on direct appeal in the state court, 2 Mr. West

filed his federal habeas petition, pursuant to 28 U.S.C. § 2254, challenging his

convictions on the same three grounds.



      The federal district court assigned the matter to a magistrate judge, who

issued a thorough and comprehensive report recommending denial of Mr. West’s

petition on all issues presented. While we decline to reiterate the magistrate

judge’s analysis throughout her fifteen-page Recommendation, we note she

carefully considered each of Mr. West’s arguments, the standard of review, and

the state court’s resolution of those same arguments, as summarized hereinafter.



      In addressing Mr. West’s arguments, the magistrate judge recounted Mr.

West’s own summary of his “morning long crime spree,” and also considered

some of Mr. West’s admissions with respect to his crime spree. It began with Mr.

West launching an unprovoked attack on his brother while he slept, hitting him

with a hammer and rendering him unconscious. He then pulled his brother’s

girlfriend from the bed into their father’s bedroom where he sodomized, raped




      2
         Mr. West also unsuccessfully filed a petition for rehearing to the Oklahoma
Court of Criminal Appeals on the issue of his concurrent sentences, which is not before
this court on appeal of his habeas petition.

                                           -3-
and choked her into unconsciousness. 3 Before leaving the apartment, Mr. West

searched for a knife because he thought his father had returned to the apartment

and he might have to kill him on the way out. He then left the apartment in a van,

drove around, and pried open the door of a house, from which he took a .22

revolver, a .45 semiautomatic handgun, clips and ammunition.



      After driving around again, Mr. West stopped at a convenience store where

he used one of the guns to rob the clerk, attempted to fire the gun (which did not

discharge) and, after leaving the store, attempted to back the van over the clerk,

who followed him out to get his license number. The same clerk notified the

police.



      Meanwhile, after driving away and “because he believed he had failed

God’s will in not killing the clerk,” Mr. West drove to another convenience store,

went inside and asked for a drink. When the clerks told him he needed money for

a beer, Mr. West went back to the van, retrieved a gun and returned to the store.

“Without a word,” he shot the man once and the woman twice as they tried to

retreat. Mr. West then drove away.



      3
         The evidence shows Mr. West was sufficiently coherent to tie the woman up
with a rope and black electrical tape.

                                         -4-
      Based on a description of the van from the first convenience store clerk, a

police officer pursued Mr. West, who drove the van into a ditch, after which he

fled on foot and was arrested. At trial, Mr. West admitted he used

methamphetamine daily and he used an illegal drug on the day he committed the

crimes. 4 After his arrest, and again at trial, he admitted to committing all the

crimes with which he was charged.



      After recounting these facts, the magistrate judge rejected Mr. West’s claim

the trial court improperly failed to instruct the jury on the defense of automatism.

In exhaustive detail, the magistrate judge explained that under Oklahoma law, the

automatism instruction and defense are inappropriate and unavailable where, as

here, the defendant voluntarily consumes a drug. 5 She further pointed out that the

jury was properly instructed on the defendant’s voluntary use of drugs, as


      4
         On direct appeal, Mr. West admitted he was “under the influence of
methamphetamine” at the time of his “morning-long crime spree,” and on appeal to this
court he states he was operating under the influence of methamphetamine and a drug-
induced “hallucination.”
      5
          In Oklahoma, the defense of automatism or unconsciousness, under Okla. Stat.
Ann. tit. 21 § 152(6) (1998), involves criminal conduct resulting from an involuntary act
completely beyond the individual’s knowledge and control, and cannot be used where the
defendant’s unconsciousness results from the voluntary consumption of alcohol or drugs.
See Sellers v. State, 809 P.2d 676, 686 (Okla. Crim. App. 1991); Jones v. State, 648 P.2d
1251, 1257-58 (Okla. Crim. App. 1982). It “is a defense distinct from that of insanity,”
State v. Krug, 92 P.3d 67, 79 (Okla. 2004), and “‘[e]xamples of automatic conduct are
blackouts and epileptic seizures.’” Id. at 79, n.13 (quoting Sellers, 809 P.2d at 687).

                                           -5-
supported by the evidence and unchallenged by the defense, as well as the

insanity instruction, as requested by the defense, and that the sua sponte omission

of the automatism instruction, which the defense never requested at trial, did not

render his trial fundamentally unfair. 6



       The magistrate judge also addressed Mr. West’s claim the trial court

erroneously instructed the jury to consider Mr. West’s flight as substantive

evidence of guilt. After reviewing the flight instruction given and the Oklahoma

Court of Criminal Appeals’ decision that the evidence at trial supported the

instruction, the magistrate judge concluded the state court’s determination was

reasonable and the instruction did not render Mr. West’s trial “fundamentally

unfair.” Specifically, the magistrate judge noted Mr. West committed each crime

at different locations, all of which he left, and that the jury could reasonably

conclude, beyond a reasonable doubt, that his determination to leave the scene of

each crime was based on his conscious guilt over the crimes he committed,

including his admission at trial that he began to drive faster and to run on foot to



       6
          In reviewing the jury instructions on automatism and on flight, the magistrate
judge relied on our ruling in Nguyen v. Reynolds, which states, “[a]s a general rule, errors
in jury instructions in a state criminal trial are not reviewable in federal habeas corpus
proceedings, unless they are so fundamentally unfair as to deprive [a] petitioner of a fair
trial and to due process of law.” 131 F.3d 1340, 1357 (10th Cir. 1997) (quotation marks
and citations omitted). See also Dockins v. Hines, 374 F.3d 935, 938-39 (10th Cir. 2004).

                                            -6-
“get away from the police.”



      Finally, the magistrate judge rejected Mr. West’s claim the State failed to

prove beyond a reasonable doubt the state-of-mind elements of the crimes

charged. After considering the standard of review, 7 the magistrate judge pointed

out Mr. West confessed and admitted to all the crimes he was charged with

committing. While Mr. West relied on the insanity defense and offered evidence

in support of that defense, contending a demon or God possessed him and spoke

to him, the magistrate judge determined the evidence, reviewed as a whole,

established a rational jury could find beyond a reasonable doubt he possessed the

requisite intent to commit the crimes with which he was charged and to which he

admitted.



      After considering all three of the aforementioned claims, the magistrate



      7
          The magistrate judge relied on Jackson v. Virginia, to conclude:

      In reviewing the sufficiency of the evidence supporting a conviction for
      purposes of habeas corpus relief, clearly established Supreme Court
      precedent provides that “the relevant question is whether, after viewing the
      evidence in the light most favorable to the prosecution, any rational trier of
      fact could have found the essential elements of the crime beyond a
      reasonable doubt.”

443 U.S. 307, 319 (1979). See also Dockins, 374 F.3d at 939.

                                            -7-
judge determined Mr. West failed to show the Oklahoma Court of Criminal

Appeals’ rejection of those claims was contrary to, or an unreasonable application

of, firmly established federal law, as determined by the Supreme Court, or an

unreasonable determination of the facts in light of the evidence presented in the

state court proceeding. After a de novo review and consideration of Mr. West’s

objections to the Recommendation, the district court adopted the magistrate

judge’s Recommendation and denied Mr. West’s habeas petition.



      On appeal, Mr. West renews the same three claims raised in his petition,

rejected by the district court, and recounted in our preceding discussion of the

magistrate judge’s Recommendation. In support of those claims, he makes the

same or similar arguments presented in his habeas petition.



      An appeal may not be taken from a final order in a § 2254 proceeding

without a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). To be entitled

to a certificate of appealability, a petitioner must make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

court has rejected the constitutional claims on the merits, the showing required to

satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional


                                         -8-
claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)

(quotation marks, alteration, and citation omitted). This is a threshold inquiry we

apply to determine whether we may entertain an appeal. Id. at 336.



      Applying these principles, we have conducted a review of the pleadings, the

record on appeal, and the district court’s decision. For purposes of judicial

economy, we decline to duplicate the magistrate judge’s comprehensive analysis

on the same issues presented to this court on appeal, other than to conclude Mr.

West fails to make a substantial showing of the denial of a constitutional right, as

required by 28 U.S.C. § 2253(c)(2).



      Thus, for substantially the same reasons set forth in the magistrate judge’s

August 30, 2004 Recommendation and the district court’s September 10, 2004

Order, we DENY Mr. West’s request for a certificate of appealability, DENY his

request to proceed in forma pauperis, and DISMISS his appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                         -9-
