                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   September 4, 2008
                                  TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                      Clerk of Court

 MARK RANDALL TAYLOR,

                 Petitioner-Appellant,                   No.08-6075
          v.                                           (W.D. of Okla.)
 JUSTIN JONES, Director, Department              (D.C. No. CV-07-1059-M)
 of Corrections,

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Mark Randall Taylor seeks a certificate of appealability (COA) to challenge

the district court’s denial of habeas corpus relief under 28 U.S.C. § 2254.

Proceeding pro se, 1 Taylor alleges there was a fatal variance between the First



      *
         This order is not binding precedent except under the doctrines of law of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.
      1
         Because Taylor proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
Amended Information charging him with possessing precursors for manufacturing

methamphetamine and the proof adduced at trial.

       We conclude Taylor is not entitled to relief under § 2254 and therefore

DENY his request for a COA.

                                    I. Background

       Taylor was arrested early in the morning when an officer spotted him

crouched by an anhydrous ammonia tank at a local co-op gin, requiring a seven-

mile car chase before the officer could catch him. After Taylor’s arrest, the

officer made an inventory of items in Taylor’s car. In the trunk the officer found

a jar filled with a white powdery substance, what appeared to be a lithium battery

strip, a can of starter fluid, and a glass jar filled with coffee filters.

       Another officer returned to the farm tank and found a small propane tank

hooked up by a hose to one of the anhydrous ammonia tanks. Although the

propane tank was empty, it appeared that Taylor had not yet opened the valves of

the ammonia tank before he was discovered.

       Taylor was charged in the First Amended Information with possession of

three precursors to manufacture illegal narcotics:

       Possession of Precursors with Intent to Manufacture a CDS, AFCF, a
       felony, on or about the 21st day of January, 2005, by knowingly
       possessing lithium, ephedrine and anhydrous ammonia, which is
       defined as a substance used in the production of a controlled
       dangerous substance. . .




                                        -2-
R., Doc. 10, Ex. 5 (citing Okla. Stat. tit. 63, § 2-401(G)(1)). At a preliminary

hearing, the district court noted that Taylor did not actually possess the anhydrous

ammonia, as indicated in the Information. However, the judge also stated Taylor

possessed a glass jar with 9.5 grams of pseudoephedrine, which is more than the

nine grams required by Oklahoma law to create a presumption of possession of

the precursor with intent to manufacture methamphetamine. Okla. Stat. tit. 63,

§ 2-332(B) (creating rebuttable presumption that possession of more than nine

grams of pseudoephedrine is with intent to produce methamphetamine). Taylor

was bound over for trial on a charge of possession of precursors with intent to

manufacture an illegal substance.

      At trial, a chemist testified that the glass jar found in Taylor’s trunk

contained 9.5 grams of pseudoephedrine, a substance found in common cold

medication, which is used to manufacture methamphetamine. After the evidence

was in, the state court instructed the jury that Taylor need possess only one

precursor to be found guilty.

      Taylor was convicted of one count by an Oklahoma state court for

possessing precursors with intent to manufacture methamphetamine after four

former felony convictions. He was sentenced to 60 years imprisonment and fined

$50,000. On appeal, the OCCA affirmed Taylor’s conviction, and Taylor

subsequently sought habeas relief in federal court.




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      Taylor’s sole claim for federal habeas relief is that the fatal variance

between the First Amended Information (possession of three precursors, including

anhydrous ammonia) and the proof at trial (possession of one precursor,

pseudoephedrine) deprived him of his Sixth Amendment right of fair notice of the

charges against them.

                                   II. Discussion

      To obtain a COA, Taylor must make “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). Taylor must show the state

court’s decision “(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 of the United States; 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). To satisfy this standard, Taylor

“must show that reasonable jurists could debate whether . . . 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 quotation marks omitted). “[A] claim can be

debatable even though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that [the] petitioner will not

prevail.” Id. at 338.




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      Number of precursors required

      Taylor claims the state did not prove at trial that he possessed three

precursors for the manufacture of methamphetamine as reflected in the First

Amended Information, and thus there was a fatal variance between the

information—listing three precursors—and the proof at trial of only one

precursor. Relatedly, Taylor claims the judge should have instructed the jury that

conviction for possession of precursors required three or more precursors to be

found, again showing an alleged fatal variance between the charged information

and the ultimate conviction. No party disputes that the state only proved

possession of the pseudoephedrine at trial, and not the ammonia or lithium ion

battery strip. As the evidence reflects, Taylor’s small propane tank had no

ammonia in it at the time he was arrested, and the state’s expert who testified that

the white powder found in Taylor’s truck was pseudoephedrine also testified that

he did not test the material suspected of being a lithium ion battery strip.

      The problem with Taylor’s claim is that the Oklahoma statute in effect at

the time of his arrest only required possession of one precursor, not three or more,

and the state court therefore properly instructed the jury. Compare Okla. Stat. tit.

63, § 2-401(G) (2004) with Okla. Unif. Jury Ins. CR 6-3A (2005 Supp.). Thus,

while the information charged Taylor with possession of three

precursors—pseudoephedrine, ammonia, and lithium battery strips—the statute

only required possession of one precursor substance for Taylor to be convicted.

                                          -5-
See Okla. Stat. tit. 63, § 2-401(G). The jury instruction which required only one

precursor to be proven, not three or more as Taylor argues should have been

proven, was consistent with Oklahoma law, and indeed was based on the correct

model instruction.

       We are bound by the Oklahoma state courts’ interpretation of the Oklahoma

state statute at issue as requiring only one precursor, not three, for conviction.

“Federal habeas corpus relief does not lie for errors of state law.” Estelle v.

McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks omitted); see also

Gonzales v. Tafoya, 515 F.3d 1097, 1126–27 (10th Cir. 2008) (“In conducting our

inquiry, we defer to the state court's interpretations of state law.”); Hatch v.

Oklahoma, 58 F.3d 1447, 1464 n.11 (10th Cir. 1995) (“Even if petitioner were to

challenge this construction of [the statute] directly, we would have to defer to the

Oklahoma court’s construction of a state statute.”) (citations omitted).

Accordingly, we will not upset the Oklahoma court’s interpretation of the state

statute.

       Variance between Information and trial proof

       Taylor also claims this variance between the information and the evidence

at trial violated his federal constitutional rights. Under the Sixth Amendment

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

informed of the nature and cause of the accusation” U.S. Const. amend. VI.

Therefore a “court cannot permit a defendant to be tried on charges that are not

                                           -6-
made in the indictment.” Stirone v. United States, 361 U.S. 212, 217 (1960). 2

However, not all variances between the information and the conviction are fatal.

      When variances do not change the nature of the conviction, they are

“simple variances” subject to harmless error analysis. Hunter v. New Mexico, 916

F.2d 595, 598–99 (10th Cir. 1990). The Supreme Court has long held the

government need not prove facts in the indictment or information which are

unnecessary or immaterial to the proof of conviction. See, e.g., Hall v. United

States, 168 U.S. 632, 639–40 (1898). Where a simple variance exists,

“[c]onvictions generally have been sustained as long as the proof upon which they

are based corresponds to an offense that was clearly set out in the indictment.”

United States v. Miller, 471 U.S. 130, 136 (1985). Accordingly, a “part of the

indictment unnecessary to and independent of the allegations of the offense

proved may normally be treated as ‘a useless averment’ that ‘may be ignored.’”

Id. at 137 (quoting Ford v. United States, 273 U.S. 593, 602 (1927)).

      As the Supreme Court long ago explained, “[t]he true inquiry, therefore, is

not whether there has been a variance in proof, but whether there has been such a

variance as to affect the substantial rights of the accused.” Berger v. United

States, 295 U.S. 78, 82 (1935) (citation omitted); see also Hunter, 916 F.2d at

598. The accused has two primary rights which are protected: “(1) [] the accused

      2
         Because Taylor’s conviction was in state court, and initiated by an
Information, rather than a grand jury, the Fifth Amendment right to a grand jury
that protects against variances does not apply. See Stirone, 361 U.S. at 215–16.

                                        -7-
shall be definitely informed as to the charges against him, so that he may be

enabled to present his defense and not be taken by surprise by the evidence

offered at the trial and (2) that he may be protected against another prosecution

for the same offense.” Berger, 295 U.S. at 82.

      We conclude that the OCCA’s decision to reject Taylor’s claim was neither

contrary to nor an unreasonable application of federal law. First, Taylor was

informed of the charges against him—the Information specifically listed his

possession of pseudoephedrine with intent to manufacture methamphetamine.

The state district court judge bound Taylor over for trial only on the basis of the

pseudoephedrine possession, putting Taylor on clear notice that he was not being

tried on the other two precursors—ammonia and lithium battery strips. The

simple inclusion in the Information of two other potential precursors did not

prejudice Taylor. He was able to present a defense, and we find no credible claim

of surprise at trial of the evidence offered. Second, we see no double-jeopardy

concern, and Taylor waived any argument of double jeopardy by not raising it

below. Even if we were to consider it under plain error review, we could not

conclude that the result would violate Taylor’s substantial rights.

      After reviewing the entire record, we agree with the Magistrate Judge’s

recommendation, as adopted by the district court, that Taylor has not shown any

prejudice from this difference in the Information and the proof at trial and

therefore cannot obtain habeas relief.

                                          -8-
                               III. Conclusion

      Accordingly, we DENY the application for COA. We also DENY the

motion to proceed in forma pauperis.

                              Entered for the Court,

                              Timothy M. Tymkovich
                              Circuit Judge




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