                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JUL 12 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 DERMICO DEON WRIGHT,

           Petitioner - Apellant,
 vs.                                                    No. 01-5209
                                                  (D.C. No. 99-CV-561-C)
 REGINALD HINES, Warden,                                (N.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


       Petitioner-Appellant Dermico Deon Wright, an inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying relief on his petition for a writ of habeas corpus, 28 U.S.C.

§ 2254. Because Mr. Wright has failed to make “a substantial showing of the

denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
his request and dismiss the appeal.

      Mr. Wright was convicted by a jury of unlawful delivery of a controlled

drug after one previous conviction and sentenced to ten years of imprisonment.

His conviction resulted from an informant purchasing $60 worth of crack cocaine

from him at a local crack house. The informant, Angela Cullom was a convicted

felon working for the Tulsa Police Department in order to gain a dismissal of new

charges that would have resulted in substantial prison time. On direct appeal to

the Oklahoma Court of Criminal Appeals (“OCCA”), Mr. Wright raised two

claims: (1) the trial court committed reversible error in overruling Mr. Wright’s

motion for a directed verdict based on a lack of sufficient evidence, and (2) the

prosecutor improperly vouched for the State’s witness again committing

reversible error. In a summary opinion, the OCCA affirmed the judgment and

sentence.

      Mr. Wright filed a petition for a writ of habeas corpus in federal district

court raising the same two claims that the OCCA denied: (1) denial of a motion

for a directed verdict was reversible error due to a lack of sufficient evidence, and

(2) the prosecutor’s remarks in closing argument were unduly prejudicial and thus

Mr. Wright was wrongly convicted. The district court considered these claims

and denied his petition.

      Mr. Wright again raises the same two issues before this court on appeal.


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Both claims were presented to the OCCA and denied by that court in a summary

opinion. As such, a writ of habeas corpus may issue only if the state court

adjudication resulted in a decision that (1) “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 the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. 2254(d)(1)–(2); Williams v. Taylor, 529

U.S. 362, 412–13 (2000). Further, the fact that the OCCA denied relief to Mr.

Wright in a summary opinion has no effect on the deference we owe to the state

court’s result. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).

      Mr. Wright’s first claim was that denial of a motion for a directed verdict

was reversible error. According to Mr. Wright, his conviction was based on

insufficient evidence. In evaluating a sufficiency of evidence claim, the Supreme

Court held that it is not for the court to inquire whether it believes the evidence

established guilt beyond a reasonable doubt, but whether, after considering the

evidence in the light most favorable to the prosecution, a rational jury could

conclude that each element of the charged crime was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This court has not yet

determined whether, under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), it reviews the state court’s sufficiency-of-the-evidence determination


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as a legal issue under 28 U.S.C. § 2254(d)(1), or a factual finding under §

2254(d)(2) and (e)(1). In this case we would reach the same result under either

standard. See Romano v. Gibson, 239 F.3d 1156, 1164 n.2 (10th Cir.), cert.

denied, —U.S.—, —, 122 S.Ct. 624, 628, (2001).

      In addition to Ms. Cullom’s testimony about the drug purchase, both the

prosecutor and defense counsel delved into Ms. Cullom’s checkered past.

Testimony of two police officers and a chemist was introduced. Evidence of each

of the elements of the crime was presented. Mr. Wright complains that the State

did not offer any corroborating witnesses for Ms. Cullom’s testimony that he was

the one who sold the crack (e.g., the other persons who were alleged to be present

in the house when the crack was purchased). The absence of corroborating

testimony was brought to the jury’s attention by Mr. Wright’s attorney. Under

these circumstances, viewing the evidence in the light most favorable to the State,

a rational trier of fact weighing the credibility of witnesses could have found the

essential elements of the crime proven beyond a reasonable doubt. The OCCA

therefore reasonably denied Mr. Wright’s claim for relief based on insufficiency

of the evidence.

      Turning to Mr. Wright’s second claim, in order to grant habeas corpus

relief for prosecutorial misconduct, the behavior must have been so egregious as

to render the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S.


                                         -4-
637, 642-648 (1974). In this case, the prosecutor’s alleged improper remarks

about Ms. Cullom’s credibility were only made during the rebuttal portion of

closing argument and only after defense counsel sought to put her credibility at

issue. Assuming, without deciding, that the remarks were improper, they do not

rise to a level that would render the entire trial unfair, nor would they be likely to

so bias the jury as to make it likely that a different verdict would have resulted

absent those remarks.

      Because neither of Mr. Wright’s claims suffice to make a substantial

showing of a denial of a constitutional right, we DENY a COA and DISMISS the

appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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