                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 14 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


ALFORD M. HALEY,

          Petitioner-Appellant,

v.
                                                        No. 00-6105
                                                 (W. District of Oklahoma)
GARY E. GIBSON; DREW
                                                  (D.C. No. 99-CV-748-C)
EDMONDSON; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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       This order and judgment is not binding precedent, except under the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.
       Alford M. Haley, proceeding pro se, is before this court seeking a

certificate of appealability (“COA”) which he must obtain before he can appeal

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

§ 2253(c)(1)(A) (providing that an appeal may not be taken from the denial of a §

2254 habeas petition unless the petitioner first obtains a COA). Haley has not

made a substantial showing of the denial of a constitutional right; he, therefore,

is not entitled to a COA and his appeal is dismissed.   See id. § 2253(c)(2).

       Haley was convicted of first degree murder in Oklahoma state court and

was sentenced to life imprisonment without the possibility of parole. On direct

appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Haley raised the

following four issues: (1) the prosecution presented insufficient evidence to

support his conviction because the testimony of an accomplice was not

corroborated; (2) the state trial court erred when it overruled his objection to a

jury instruction on other crimes evidence; (3) the trial court made erroneous

evidentiary rulings when it allowed testimony of witness intimidation, admitted

handwritten notes written by Haley, and allowed a police officer to read his notes

into the record; and (4) the sentence imposed is excessive. The OCCA issued an

opinion affirming Haley’s conviction and sentence. After exhausting his state




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remedies, Haley filed the instant § 2254 habeas petition reasserting the four

claims he raised before the OCCA. 1

      The district court assigned Haley’s petition to a United States magistrate

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

that the petition be dismissed. After reviewing Haley’s objections, the district

court adopted the magistrate judge’s Report and Recommendation, and dismissed

Haley’s petition. 2 The district court also refused to grant Haley a COA.

      Haley filed his habeas petition after the April 24, 1996 effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA,

therefore, governs this court’s review of Haley’s claims. Because each of Haley’s

claims has already been addressed by the OCCA on the merits, this court cannot

grant the writ of habeas corpus unless the state court’s decision “was 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),

or “was based on an unreasonable determination of the facts in light of the

evidence presented at trial.” Id. § 2254(d)(2); see also Williams v. Taylor, 120 S.

Ct. 1495, 1518-23 (2000) (interpreting 28 U.S.C. § 2254(d)(1)).

      1
       The district court liberally construed Haley’s habeas petition as raising
constitutional questions.

      The district court also denied Haley’s motion to proceed in forma pauperis
      2

on appeal and Haley renewed that motion before this court. Haley’s renewed
motion to proceed in forma pauperis on appeal is denied.

                                         -3-
       Haley first claims that the prosecution presented insufficient evidence to

sustain his conviction. Specifically, Haley asserts that the state failed to prove

that he caused the death of the victim because the only evidence linking him to

the murder was the testimony of his accomplice. See Okla. Stat. tit. 22, § 742

(providing that a defendant cannot be convicted based upon the uncorroborated

testimony of an accomplice). Recognizing that Haley’s claim is not cognizable

on habeas review, Johnson v. Turner , 429 F.2d 1152, 1155 (10th Cir. 1970), the

district court recharacterized Haley’s claim as a constitutionally-based sufficiency

of the evidence claim that can be raised in a § 2254 petition.   See Jackson v.

Virginia , 443 U.S. 307, 321 (1979). On habeas review of sufficiency of the

evidence claims, this court must determine “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.”     Id. at 319.



       The Report and Recommendation contains a comprehensive discussion of

the evidence presented at Haley’s trial. This evidence was not limited to the

testimony of Haley’s accomplice, but also included the testimony of eyewitnesses

to the murder. We agree with the district court that the evidence presented at

Haley’s trial, viewed in the light most favorable to the prosecution, was sufficient




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to support Haley’s conviction. Haley’s sufficiency of the evidence claim,

therefore, lacks merit.

      Haley next argues that the trial court erred when it made three separate

evidentiary rulings. “State court rulings on the admissibility of evidence may not

be questioned in federal habeas corpus proceedings unless they render the trial so

fundamentally unfair as to constitute a denial of federal constitutional rights.”

Brinlee v. Crisp , 608 F.2d 839, 850 (10th Cir. 1979). Haley claims the trial court

erred when it admitted evidence of witness intimidation; allowed the admission

of incriminating, handwritten notes attributed to Haley; and allowed a police

officer to read his notes into the record. Each of these claims was thoroughly

analyzed by the magistrate judge and discussed at length in the Report and

Recommendation and, in the interest of judicial economy, we will not repeat the

magistrate judge’s analysis on each evidentiary issue. We agree with the district

court’s conclusion that Haley has failed to demonstrate how any of the trial

court’s evidentiary rulings rendered his trial fundamentally unfair. Haley’s

evidentiary’s claims, therefore, are also without merit.

      Haley next argues that the trial court failed to properly instruct the jury on

the limited purpose for which the jury could consider evidence of other crimes

committed by Haley. The district court noted that not only did Haley fail to

object to the jury instruction at trial, but that the instruction of which Haley


                                          -5-
complains was submitted by Haley himself. A petitioner who claims the trial

court gave an erroneous jury instruction is not entitled to habeas relief on his

claim when the error complained of resulted from the petitioner’s own conduct in

submitting the instruction.    See Parker v. Champion , 148 F.3d 1219, 1222 (10th

Cir. 1998). Even if the invited error doctrine did not apply, Haley is not entitled

to relief on this claim in a § 2254 habeas petition unless the state court’s error

“had the effect of rendering the trial so fundamentally unfair as to cause a denial

of a fair trial in the constitutional sense.” Brinlee, 608 F.2d at 854. This court

agrees with the district court that Haley’s trial was not rendered fundamentally

unfair by the allegedly erroneous instruction. 3

       In his final argument, 4 Haley claims the sentence imposed by the trial court

was excessive. If we construe Haley’s claim as a due process challenge to his

sentence, Haley is not entitled to habeas relief on this claim if the sentence

imposed is within the limitations set by statute.   See Vasquez v. Cooper , 862 F.2d


       3
        Haley includes a one-sentence argument in his appellate brief that his trial
counsel was ineffective for failing to object to the allegedly erroneous jury
instruction. This claim was not presented to the district court in Haley’s § 2254
petition and this court will not consider issues raised for the first time on appeal.
See Rhine v. Boone , 182 F.3d 1153, 1154 (10th Cir. 1999).

       Haley also argues that the district court’s recharacterization of his Motion
       4

to Deny Response to Petition for Writ of Habeas Corpus as a reply violated his
due process rights. Haley also claims that the denial of a Motion to Order
Summary Judgment he filed was fundamentally unfair and violated his due
process rights. Haley’s claims are utterly without merit.

                                             -6-
250, 255 (10th Cir. 1988). The crime of which Haley was convicted is

punishable by death, life imprisonment without the possibility of parole, or life

imprisonment. See Okla Stat. tit. 21, §§ 701.7, 701.9. Haley’s sentence of life

imprisonment without the possibility of parole is, therefore, clearly within the

statutory limits and his claim is without merit. If Haley’s claim is construed as

an Eighth Amendment challenge to his sentence, Haley is likewise not entitled to

relief because his sentence is not grossly disproportionate to the crime he

committed. See Hawkins v. Hargett , 200 F.3d 1279, 1282 (10th Cir. 1999).

      Haley must make a “substantial showing of the denial of a constitutional

right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2). Haley may make

this showing by demonstrating 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).

Upon review of the relevant case law, Haley’s appellate brief and his application

for a COA, and the entire record on appeal, we agree with the district court’s

conclusion that all of Haley’s claims lack merit and that Haley has failed to

demonstrate that the OCCA’s adjudication of his claims is “contrary to, or

involved an unreasonable application of, clearly established Federal law,” or is

“based on an unreasonable determination of the facts in light of the evidence

presented at trial.” 28 U.S.C. § 2254(d)(1), (2).


                                          -7-
       This court concludes the issues raised by Haley are not reasonably

debatable, subject to a different resolution on appeal, or deserving of further

proceedings. Haley, therefore, has not made a substantial showing of the denial

of a federal right and he is not entitled to a COA.    See 28 U.S.C. § 2253(c)(2).

We deny Haley’s application for a COA         and dismiss his appeal for substantially

those reasons set out in the magistrate judge’s Report and Recommendation dated

February 15, 2000 and the district court’s order dated March 7, 2000.

                                                   ENTERED FOR THE COURT:



                                                   Michael R. Murphy
                                                   Circuit Judge




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