                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                   DEC 9 2004
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 EUGENE KIRK,

                   Petitioner-Appellant,                      No. 04-6200
           v.                                             (W. District of Okla.)
 REGINALD HINES, Warden,                                (D.C. No. CV-03-997-M)

                   Respondent-Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY                        *




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




       Petitioner-Appellant Eugene Kirk, a state prisoner appearing pro se, filed a

petition for writ of habeas corpus in the district court pursuant to 28 U.S.C.

§ 2254 (2000). Upon the magistrate judge’s recommendation, the district court

denied Kirk’s writ of habeas corpus. The district court also denied Kirk a

certificate of appealability (COA).        See 28 U.S.C. § 2253(c)(1) (2000) (a


       *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
       **
         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.
petitioner may not appeal the denial of habeas corpus relief unless he first obtains

a COA). Kirk now seeks to appeal the district court’s ruling on the same grounds

that were rejected by the district court. Because Kirk has not made a substantial

showing of the denial of a constitutional right, we deny his COA and dismiss the

appeal.

                                    Background

      Kirk was tried and convicted by a jury in Oklahoma state court on three

counts: Murder in the First Degree (Count I); Domestic Abuse After a Former

Conviction of Domestic Abuse (Count II); and Assault with a Dangerous Weapon

(Count III). Kirk received life without parole for Count I, and forty years in

prison for each of the other two counts; his sentences were to run consecutively.

Kirk then filed a direct appeal to the Oklahoma Court of Criminal Appeals

(OCCA), citing seven trial errors. The OCCA affirmed Williams’s conviction and

sentences on Counts I and III, but reversed his conviction for domestic abuse,

thus reducing Kirk’s sentence by forty years. The OCCA also found the trial court

erred when it failed to give a jury instruction regarding impeachment by prior bad

acts, but found that the error was harmless beyond a reasonable doubt.

      Thereafter, Kirk filed the instant § 2254 petition, citing six grounds for

relief, all of which were part of his original appeal to and rejected by the OCCA.

First, Kirk asserted that the evidence was insufficient to convict him of Count I.


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Second, Kirk argued prosecutorial misconduct during closing arguments wherein

the prosecutor’s alleged vouching for a witness violated his Sixth, Eighth, and

Fourteenth Amendment rights. Third, Kirk claimed that the trial court

erroneously admitted “other crimes” evidence in violation of his Sixth, Eighth,

and Fourteenth Amendment rights. Fourth, Kirk argued that the court’s failure to

grant his jury instruction regarding impeachment by prior bad acts violated his

due process rights. Fifth, Kirk asserted that the court’s jury instructions placed

too much emphasis on his prior conviction. Finally, Kirk claimed that the

cumulative effect of the court’s errors violated his right to a fair trial.

                                           Analysis

       This court may only issue a COA and entertain Kirk’s appeal if he “has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2000).     See also Slack v. McDaniel       , 529 U.S. 473, 484 (2000);

United States v. Springfield    , 337 F.3d 1175, 1177 (10th Cir. 2003). To make the

necessary substantial showing, “a petitioner must show 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.”           Miller-El v. Cockrell , 537 U.S. 322,

336 (2003) (internal quotations omitted). Our role is not to engage in a “full

consideration of the factual or legal bases adduced in support of the claims,” but


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rather to conduct “an overview of the claims in the habeas petition and a general

assessment of their merits.”   Id. Additionally, in cases such as this where the

petitioner’s federal habeas claims were adjudicated on the merits in state court,

Congress has instructed that we may grant habeas relief only where the state court

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law” 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) (2000). We have recently held that this standard of deferential

treatment of state court decisions must be incorporated into our consideration of a

habeas petitioner’s request for a COA.   See Dockins v. Hines , 374 F.3d 935, 938

(10th Cir. 2004).

       In his direct appeal, the OCCA found that the jury properly convicted Kirk

of First Degree Murder and Assault with a Dangerous Weapon, but found that the

jury improperly convicted him of Domestic Abuse After a Former Conviction of

Domestic Abuse. After conducting the required overview of Kirk’s claims, and

having considered the deferential treatment accorded to state court decisions

under § 2254(d), we agree with the district court that Kirk has failed to make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2000).




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      The magistrate judge’s thorough examination of all six of Kirk’s claims,

with which we agree and adopt by reference, demonstrates that the district court’s

denial of Kirk’s habeas petition was not a decision that reasonable jurists could

debate.

      First, it is clear, particularly in light of the limited scope of our review

under § 2254, that the evidence presented at trial was such that a “rational trier of

fact could have found the elements of [First Degree Murder] beyond a reasonable

doubt.” Romano v. Gibson , 239 F.3d 1156, 1164 (10th Cir. 2001) (internal

quotations omitted). Second, the OCCA did not err when it found that the

prosecution’s emphasis on the consistency of the witnesses’ testimony did not

constitute vouching for those witnesses. Third, no actual “other crimes” evidence

was admitted because the trial court sustained an objection to a question

regarding Kirk’s prior incidents of domestic abuse before the witness could

answer the question. What is more, the court instructed the jury to ignore the

question and any implications that could possibly be drawn from it. Fourth, the

OCCA’s finding that the trial court committed harmless error by not providing the

jury with an instruction on impeachment by prior inconsistent statements was

correct because it applied and analyzed the issue using the proper standard to

determine harmlessness. Fifth, the OCCA properly rejected Kirk’s argument that

two jury instructions concerning impeachment by former conviction unduly


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emphasized his prior conviction. Kirk did in fact have a prior conviction and the

instruction was proper. Finally, the OCCA properly evaluated the impact of the

trial court’s errors, i.e., not providing a jury instruction on impeachment by prior

bad acts and improperly convicting Kirk on Count II, because there was no

cumulative effect of the errors since there was only one harmless error.

      Accordingly, we find that no reasonable jurist could disagree with the

conclusions made by the district court in its denial of Kirk’s petition for relief and

COA. Therefore, we DENY the request for a COA and DISMISS the case.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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