                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 6, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 RAYMOND DAVID MAIXNER,

                 Petitioner-Appellant,                   No. 12-6043
          v.                                           (W.D. of Okla.)
 JAMES RUDEK, Warden,                           (D.C. No. 5:10-CV-01027-W)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Raymond Maixner, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to appeal the district court’s denial of his habeas petition

pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), and we construe Maixner’s filings liberally because he is proceeding pro

se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).




      *
         This order is not binding precedent except under the doctrines of law of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 and 10th Cir. R. 32.1.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Because the district court correctly disposed of Maixner’s petition, we

DENY the application for a COA and DISMISS the appeal.

                                 I. Background

      An Oklahoma jury convicted Maixner of unauthorized use of a motor

vehicle, attempted aggravated eluding a police officer, possession of a firearm

after former conviction of a felony, and resisting arrest. He was sentenced to a

total of 33 years imprisonment. Maixner unsuccessfully appealed his convictions

to the Oklahoma Court of Criminal Appeals (OCCA).

      Maixner then filed a petition for writ of habeas corpus raising three

grounds for relief: (1) the trial court failed to require the state to provide a race-

neutral explanation for the exercise of its peremptory challenges against minority

jurors in violation of Maixner’s due process rights, as determined by the United

States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986) and Powers v.

Ohio, 499 U.S. 400 (1991); (2) the state presented insufficient evidence to

support Maixner’s conviction in violation of his right to due process; and (3) the

court allowed Maixner’s involuntary statements to police to be admitted into

evidence in violation of his constitutional right to remain silent.

      The matter was referred to a magistrate judge, who recommended that the

petition be denied. The district court adopted the recommendation, and this

appeal followed.



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                                II. Discussion

      The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a

petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of

a COA. 28 U.S.C. § 2253(c)(1). To receive a COA, the petitioner must

make a “substantial showing of the denial of a constitutional right.” Id. at

§ 2253(c)(2). When, as here, a state court has adjudicated a claim on the merits, a

federal court may grant habeas relief only if the state court’s adjudication “(1)

resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court,” or (2) “resulted in a decision that was based on an unreasonable

determination of facts in light of the evidence presented in the state court

proceeding.” 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 404–05

(2000). A state court’s factual findings are presumed to be correct, absent clear

and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

      Maixner renews on appeal three issues he raised below.

      A. Batson Challenge

      Maixner first argues the prosecution applied impermissible racial factors in

using peremptory challenges to strike minority jurors.

      Under Batson, a defendant challenging the use of peremptory strikes during

jury selection must make a prima facie showing that the prosecutor exercised a

peremptory challenge for purposeful discrimination. Id. at 93–94. Only then

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does the burden shift to the prosecution to articulate a race-neutral reason for

striking the juror in question. Id. After reviewing the record, the OCCA found

that Maixner failed to make the requisite prima facie showing of invidious intent

at the time of his objection, and the trial court properly overruled the objections

without requiring the state to articulate a race-neutral reason for the peremptory

strikes. 1

        In each of the challenged instances, it is apparent from the record that the

State struck the prospective juror for race-neutral reasons. One of the prospective

minority jurors was only 18 years old; another prospective juror described an

unsatisfactory experience with a district attorney and an untruthful police officer,

and had a cousin who had been convicted of murder. A third prospective juror

had a friend who was convicted of murder.

        Maixner has not demonstrated that the OCCA’s decision was an objectively

unreasonable application of Batson. See Saiz v. Ortiz, 392 F.3d 1166, 1178 (10th

Cir. 2004) (“We may infer from the trial court’s decision not to go on to step two

of the Batson analysis (asking the prosecution to explain its peremptory strike)

that it concluded that Saiz had failed to establish a prima facie case of

discrimination . . . .”).



        1
        At trial, after defense counsel objected under Batson arguing that the
exclusion “appears” to be racially motivated, the “Court stated, ‘okay’ and
overruled” the objection. R., Vol. 1, at 8.

                                          -4-
      B. Sufficiency of the Evidence

      The OCCA also rejected Maixner’s claim that the evidence presented at

trial was not sufficient to support his convictions for attempted aggravated

eluding a police officer and possession of a firearm after a prior felony

conviction.

      Due process protects a criminal defendant from conviction unless every

element of the crime charged is proven beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364 (1970). Review of a jury verdict for sufficiency of

the evidence under Jackson v. Virginia, 443 U.S. 307, 319 (1979) requires that,

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.

      Maixner alleges that the state failed to prove two elements—that he (1)

“endangered another person” (an aggravating element of attempt to elude a police

officer under Okla. Stat. tit. 21, § 540(A)(B)), and (2) failed to show, for purposes

of the charge pertaining to firearm possession, that the “weapon in this case was

capable of discharging a projectile.” R., Vol. 1, at 10.

      The OCCA determined that, under Jackson, the essential elements of the

charged offenses were satisfied by sufficient evidence. First, the state presented

evidence that the officers themselves were in danger due to the high rate of speed

involved in Maixner’s attempt to elude officers. Second, under state law, whether

                                         -5-
or not the firearm in the suspect’s possession was capable of firing is not an

element that must be proven to sustain a conviction of possession of a firearm by

a felon. See Sims v. State, 762 P.2d 270, 272 (Okla. Crim. App. 1988)

(interpreting Okla. Stat. tit. 21, § 1283).

       Both of Maixner’s challenges to the sufficiency of the evidence are

grounded in state law, and the OCCA’s interpretation of state law is binding on

this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Accordingly, the

OCCA’s decision is neither contrary to, nor an unreasonable application of

Supreme Court law.

       C. Admission of Maixner’s Statements to Police

       Maixner’s final challenge to his convictions is based on his claim that his

statements to police officers were inadmissible because the statements were not

knowingly or voluntarily made.

       The totality of the circumstances must be considered when reviewing a

confession for voluntariness. See Withrow v. Williams, 507 U.S. 680, 689 (1993).

In response to an officer’s question, Maixner said that he was scared, had a gun,

and was a felon. Maixner asserts that he made the statements while in the

hospital “with probes still stuck in his chest from being tazed [sic] by Police, and

he had just eaten a large quantity of ice cocaine, and was beaten by police several

times . . . .” R., Vol. 1, at 12.




                                              -6-
      The trial court held a pre-trial hearing pursuant to Jackson v. Denno, 378

U.S. 368 (1964), to determine the voluntariness of Maixner’s statements to police.

The officer who took the statements testified that Maixner was alert and did not

seem to be under the influence of alcohol or drugs. The officer also testified that

he read Maixner his Miranda rights and that Maixner waived his right to an

attorney and agreed to speak with him. Based on this testimony, the trial court

overruled Maixner’s motion to suppress the statements, finding they were

voluntary and thus admissible. After considering the totality of the

circumstances, the OCCA affirmed the trial court’s decision.

      We find no fault with the OCCA’s application of Supreme Court law.

Based on our own review of the record, the OCCA adequately identified the

correct legal standard and applied it reasonably.

                                III. Conclusion

      For all of these reasons, we DENY Maixner’s application for a COA, and

DISMISS the petition. We DENY Maixner’s motion to proceed in forma

pauperis.

                                       ENTERED FOR THE COURT,


                                       Timothy M. Tymkovich
                                       Circuit Judge




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