                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 18 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 MICHAEL ALLEN NOLTE,

           Petitioner-Appellant,
                                                        No. 99-6092
 v.
                                                  (D.C. No. 98-CV-784-L)
                                                        (W.D. Okla.)
 GARY L. GIBSON,

           Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.




       Michael Allen Nolte seeks a certificate of appealability (“COA”) to appeal

the district court’s denial of his § 2254 habeas corpus petition. We deny COA on

all issues. 1


       After examining the briefs and appellate record, this panel has determined
       *

unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

       Before us also is Nolte’s “Motion to Allow an Excess of Twenty Pages in
       1

Petitioner’s Amended Opening Brief.” Nolte asks us to consider the amended
                                                                   (continued...)
      In 1987, Nolte and three other prisoners escaped from a county jail in

Illinois. They made their way to Missouri in a stolen truck, and at a rest area near

Rolla attacked Edgar Wayne Allen, clubbing him in the back of the head and tying

him up. The escapees placed Allen in the back of his motorhome and headed

toward Oklahoma in the truck and motorhome. Eventually, the escapees

separated, and Nolte and another escapee, Randall Kawakami, drove the

motorhome through Oklahoma with Allen in the back. In Caddo County,

Oklahoma, they dumped Allen’s body. The two then proceeded to New Mexico,

where they were arrested.

      In 1988, Nolte was convicted in Oklahoma state court of First Degree

Felony Murder for the death of Allen, and sentenced to death. Nolte then filed in

the Oklahoma Court of Criminal Appeals (“OCCA”) an Application to Assume

Original Jurisdiction and Petition for a Writ of Habeas Corpus, challenging the

jurisdiction of the trial court. The OCCA denied the writ in an unpublished

opinion. After the United States Supreme Court denied certiorari, Nolte perfected

his direct appeal in the OCCA, which affirmed his conviction but remanded the

case to the trial court for resentencing. See Nolte v. Oklahoma, 892 P.2d 638


      1
        (...continued)
brief, 33 pages, along with his “partial Opening Brief,” which is 23 pages. We
grant the motion. However, we decline Petitioner’s suggestion that we consider
by incorporation a portion of his brief in support of his habeas corpus petition in
the district court.

                                         -2-
(Okla. Crim. App. 1994). After Nolte was resentenced to life without possibility

of parole, he filed a timely appeal with the OCCA challenging the new sentence.

The OCCA affirmed the sentence on June 6, 1997.

      Nolte filed a habeas petition in federal court pursuant to 28 U.S.C. § 2254

on June 5, 1998, arguing (1) the venue for his trial was improper; (2) the trial

court lacked jurisdiction to try him; (3) minority jurors were excused without

valid reasons; (4) admission of victim impact evidence violated his constitutional

right to be free from application of ex post facto laws; (5) several trial exhibits

were introduced in violation of his due process rights 2; and (6) prosecutorial

misconduct deprived him of his right to a fair trial. A magistrate judge

recommended that the petition be denied, and the district court adopted that

recommendation and denied the petition on January 29, 1999. The district court

did not act on a COA, so it is deemed denied by the district court. See Tenth

Circuit Emergency General Order of October 1, 1996. Proceeding pro se before

this court, Nolte applies for a COA for all the issues raised in his petition except

the challenge to the trial exhibits, and asserts a new claim of ineffective

assistance of counsel with respect to the federal habeas proceedings below. We

deny COA on all claims.



      2
       Nolte filed a notice of amendment asking the district court to delete this
claim, and it was accordingly omitted from the district court’s consideration.

                                          -3-
      In his first and second claims, Nolte argues that venue was not proper in

the Oklahoma state trial court, and that the trial court lacked jurisdiction, because

Allen died in Missouri shortly after he was clubbed, rather than in Oklahoma,

where his body was disposed. In the unpublished disposition denying Nolte’s

state habeas petition, the OCCA rejected Nolte’s allegation that the victim died in

Oklahoma. On the subsequent direct appeal, the OCCA noted that, in statements

to authorities admitted at trial, Nolte “said he did not know whether Mr. Allen

was dead or alive, but related that Kawakami told him that Mr. Allen was still

alive.” Nolte, 892 P.2d at 640-41. The OCCA then quoted its holding in the

habeas disposition that “the record reveals competent evidence that the act of

murder was consummated in Caddo County, Oklahoma,” and suggested that

Nolte’s claim was barred by res judicata. Id. at 641. Nevertheless, the OCCA

reviewed the record and again held that there was “sufficient evidence to find that

the act of murder was consummated in Caddo, Oklahoma, and therefore,

jurisdiction is in Oklahoma.” Id.

      In his brief before us, Nolte quotes excerpts from the resentencing

testimony of the medical examiner who performed the autopsy on Allen. 3

According to Nolte’s quoted excerpts, the medical examiner opined that Allen


      3
       Apparently, the medical examiner also testified at trial. However, that
testimony is not part of the record before us, and Nolte only mentions it in
passing in his briefs.

                                         -4-
“probably” died within “a few minutes to an hour, at the most,” of being struck in

the head. However, the medical examiner also conceded that Allen could have

survived for “3, 4—maybe 8, 9, 10 [hours] at the most.”

      As an initial matter, we observe that this evidence came too late in the day,

at the resentencing hearing after the OCCA twice (on habeas and direct appeal)

made the factual finding that Allen’s murder was consummated in Oklahoma. In

fact, when the OCCA was presented with the issue again after direct appeal and

resentencing, the court declared it barred by res judicata. Furthermore, that

resentencing testimony is not part of the record before us. In any event, we have

carefully reviewed the record and do not believe that Nolte, through either

excerpts from the medical examiner’s testimony or anything else in the record

before us, overcomes by clear and convincing evidence the OCCA’s

determination that Allen died in Oklahoma. The state court’s factual finding

retains its presumption of correctness under AEDPA. See 28 U.S.C. § 2254(e)(1).

Therefore, we deny COA on Nolte’s challenges to venue and jurisdiction in the

Oklahoma state trial court.

      With respect to Nolte’s claims that minority jurors were improperly

excluded under Batson v. Kentucky, 476 U.S. 79 (1986), and Powers v. Ohio, 499

U.S. 400 (1991); that the admission of victim impact evidence at resentencing

violated the Ex Post Facto Clause of the Constitution; and that prosecutorial


                                        -5-
misconduct deprived him of a fair trial, we deny COA for substantially the same

reasons the claims were rejected by the federal magistrate judge in his thorough

Supplemental Findings and Recommendation, and by the district court in adoption

of the magistrate’s report.

      Finally, we deny COA on Nolte’s claim of ineffective assistance of counsel

in the federal habeas corpus proceedings below, as there is no constitutional right

to counsel in such a proceeding. See Swazo v. Wyoming Dept. of Corr. State

Pen. Warden, 23 F.3d 332, 333 (10th Cir. 1994).

      COA is DENIED on all issues. See 28 U.S.C. § 2253(c)(2).

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        -6-
