                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 17, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT


 VECENTIE SONTIAGO MORALES,
 JR.,

              Petitioner-Appellant,
                                                         No. 09-6067
 v.                                               (Case No. 08-CV-00828-C)
                                                         (W.D. Okla.)
 JUSTIN JONES, Director,

              Respondent-Appellee.


                                      ORDER *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Petitioner, a pro se state prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition relating to his

conviction for uttering a forged instrument. After representing himself in a state

jury trial, Petitioner was convicted of uttering a forged instrument following a

prior felony conviction, and he was sentenced to twenty-seven years of

imprisonment. His conviction was affirmed on direct appeal. In his § 2254

habeas petition, Petitioner raised the same issues he had raised on direct appeal in



      *
        This order is not binding precedent, except under the doctrines of law of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.
Oklahoma state court; namely, (1) that the trial court erred in admitting evidence

of other bad acts, and (2) that he did not knowingly and voluntarily waive his

right to counsel at trial. The magistrate judge recommended that the habeas

petition be denied, and the district court agreed. Petitioner now seeks a certificate

of appealability to appeal this ruling.

        On Petitioner’s first claim for habeas relief, the magistrate judge noted “a

state court’s misapplication of its own evidentiary rules” is generally insufficient

for federal habeas relief and that a petitioner seeking habeas relief for the

allegedly improper admission of evidence must show “the alleged error was ‘so

grossly prejudicial [that it] fatally infected the trial and denied the fundamental

fairness that is the essence of due process.’” Bullock v. Carver, 297 F.3d 1036,

1055 (10th Cir. 2002) (quoting Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir.

2002)) (alteration in original). After discussing the Oklahoma Court of Criminal

Appeals’ conclusion that the contested evidence was admissible to prove

Petitioner’s motive, intent, knowledge, and identity, the magistrate judge

concluded that the admission of this evidence did not render Petitioner’s trial

fundamentally unfair, particularly in light of the limiting instruction given to the

jury.

        As for Petitioner’s second claim, the magistrate judge detailed the

numerous discussions in the record regarding Petitioner’s decision to represent

himself at trial. The magistrate judge concluded that Petitioner had not shown

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any of the attorneys appointed to represent him were incompetent nor that an

actual conflict of interest existed, and he therefore rejected Petitioner’s argument

that he was forced to represent himself. Based on the evidence in the record, the

magistrate judge concluded Petitioner had not shown that the Oklahoma Court of

Criminal Appeals’ factual findings were incorrect nor that its decision was

contrary to or an unreasonable application of controlling Supreme Court

precedent. The district court agreed and adopted the magistrate judge’s report

and recommendation in its entirety.

      Having carefully reviewed the record on appeal, Petitioner’s brief, the

magistrate judge’s report and recommendation, and the district court’s ruling, we

likewise agree with the magistrate judge’s conclusions, and we hold that

reasonable jurists would not debate the district court’s dismissal of Petitioner’s

claims. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, for

substantially the reasons set forth by the magistrate judge and district court, we

DENY Petitioner’s request for a certificate of appealability and DISMISS the

appeal. We GRANT Petitioner’s motion for leave to proceed in forma pauperis.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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