                                                                            F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            MAR 29 2005
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 LAURA LONG,

       Petitioner-Appellant,
 v.                                                      No. 04-6117
 STATE OF OKLAHOMA,                               (D.C. No. CIV-03-184-W)
                                                        (W. D. Okla.)
       Respondent-Appellee.




                                      ORDER


Before BRISCOE, LUCERO,         and MURPHY , Circuit Judges.


      Laura K. Long, an Oklahoma state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of her 28

U.S.C. § 2254 habeas petition. We DENY a COA and DISMISS.

      Following a jury trial in the District Court of Oklahoma County, Ms. Long

was convicted of larceny of merchandise from a retailer after a former felony

conviction and was sentenced to twenty years of imprisonment. She filed a direct

appeal raising a single proposition of error concerning the trial court’s

supplement to a jury instruction in response to a question from the jury. The

Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Ms. Long’s conviction
and sentence. Ms. Long then filed a post-conviction application, which the state

district court denied. Her appeal of the district court’s ruling was dismissed by

the OCCA for failure to timely appeal and for failure to attach the state district

court’s order denying the application.

      On February 1, 2003, Ms. Long filed a petition for habeas pursuant to 28

U.S.C. § 2254 in the Western District of Oklahoma, in which she raised eight

claims for relief. In claims one and four, she raised the same issue as on direct

appeal — that the trial court improperly instructed the jury by removing the

government’s burden of proof on an essential element of the offense. In claims

two, three, five and seven, Ms. Long alleged that her trial and appellate counsel

provided ineffective assistance. In claim six, Ms. Long challenged the trial

court’s failure to hold an evidentiary hearing on her post-conviction ineffective

assistance claim. In claim eight, she alleged that she had been denied meaningful

access to the courts.

      On February 9, 2004, Magistrate Judge Bana Roberts issued a detailed

Report and Recommendation determining that: Ms. Long was not entitled to

habeas relief on claims one and four; claims two, three, five and seven were

procedurally barred; claim six was unexhausted, would be procedurally barred in

state court and failed to raise a cognizable federal claim; and, claim eight was not

a cognizable habeas claim and should have been brought pursuant to 42 U.S.C. §


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1983. On March 31, 2004, the district court adopted the magistrate judge’s

recommendation and dismissed Ms. Long’s petition. Ms. Long now appeals and

seeks a COA. On appeal, she makes two broad arguments: the district court

erred in its determination that the jury instructions did not violate her right to due

process and it erred in determining that she was not entitled to an evidentiary

hearing on the issue of whether she could show cause for her procedural default.

      Ms. Long’s petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), and so AEDPA’s

provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1

(10th Cir.1999). AEDPA conditions a petitioner’s right to appeal a denial of

habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A

COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” § 2253(c)(2). 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

quotation omitted). This court has further clarified that AEDPA’s 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


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(10th Cir. 2004). This requires Ms. Long to demonstrate that reasonable jurists

could debate whether she might be eligible for habeas relief. Id. In other words,

she must show reasonable jurists could debate the district court’s determination

that the OCCA’s decision was not “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court ...” and was not “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).

      A brief look at the merits of Ms. Long’s claim convinces us that a COA

should not issue here. Claims of erroneous jury instructions can justify setting

aside a state conviction on habeas review only if “the errors had the effect of

rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the

constitutional sense, or is otherwise constitutionally objectionable as, for

example, by transgressing the constitutionally rooted presumption of innocence.”

Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir.1979) (internal citations omitted).

The OCCA addressed the allegedly improper instruction and affirmed Ms. Long’s

conviction and sentence in a summary opinion. It determined that no objection

was made to the trial court’s answer to the jury’s question regarding the element

of “carrying away” and that no plain error (and therefore no constitutional error)

occurred. In turn, after a thorough review, the magistrate judge concluded that


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Ms. Long had failed “to show that the trial court’s response to the jury’s question

was erroneous much less that it rendered her trial fundamentally unfair.” R & R

at 8. The district court adopted this conclusion, determining that the OCCA’s

decision was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the United States Supreme Court. 28

U.S.C. § 2254(d)(1). After reviewing the record, as well as the magistrate judge’s

report and recommendation and district court’s order, we conclude that reasonable

jurists would not debate Ms. Long’s eligibility for habeas relief.

      Ms. Long’s second claim — that the district court erred in determining that

she was not entitled to an evidentiary hearing on the issue of whether she could

show cause for procedurally defaulting — is essentially an amalgam of the sixth

and eighth claims in her petition. Although she does not appeal the district

court’s determination that her ineffective assistance claims are procedurally

barred, she argues that the district court should have granted her an evidentiary

hearing to determine whether “cause and prejudice” existed, which would excuse

her procedural default. She also argues that the “cause” of her default on her

ineffective assistance claims was inadequate inmate legal assistance by the inmate

law clerks. We need not address these arguments, however, because even if she

could show cause for procedurally defaulting her ineffective assistance claims,

she cannot show prejudice. Her ineffective assistance claims are all based on her


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trial counsel’s failure to object to the trial court’s answer to the jury’s question.

We have, however, already concluded that reasonable jurists would not debate

Ms. Long’s eligibility for habeas relief based on any error in the trial court’s

instructions to the jury.

      We therefore DENY a COA on all claims for habeas relief and DISMISS

this appeal. Given our disposition, petitioner’s motion for appointment of counsel

and all other pending motions are denied.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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