                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS July 25, 2013

                                  TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                   Clerk of Court


 JOE WINSTON, III,

       Petitioner - Appellant,
                                                         No. 13-5031
 v.                                         (D.C. No. 4:10-CV-00184-GKF-TLW)
                                                         (N.D. Okla.)
 ANITA TRAMMELL, Acting Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Petitioner Joe Winston, III, a state prisoner appearing pro se, seeks a

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

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny his

request and dismiss the appeal.

      Mr. Winston was convicted of robbery with a dangerous weapon and

sentenced to life imprisonment. He alleges that (1) he was denied the right to

present a defense when the trial court refused to admit the judgments and

sentences of his co-defendants, (2) there was insufficient evidence to support his

conviction, (3) his sentence was excessive, and (4) he was denied effective

assistance of trial counsel. Aplt. Br. 3–22. The Oklahoma Court of Criminal
Appeals rejected each of these arguments on direct appeal and in post-conviction

proceedings. See I R. 19–24.

      The federal district court also considered these claims and concluded that

the Oklahoma courts’ resolution was not contrary to or an unreasonable

application of federal law, nor based on an unreasonable determination of the

facts. Winston v. Trammell, No. 10-CV-184-GKF-TLW, 2013 WL 868941 (N.D.

Okla. Mar. 7, 2013); see 28 U.S.C. § 2254(d). In particular, the court found that

Mr. Winston failed to demonstrate that the trial court’s refusal to admit his co-

defendants’ judgments and sentences rendered his trial fundamentally unfair

where those judgments were not relevant or exculpatory. Winston, 2013 WL

868941, at *4 (citing Crane v. Kentucky, 476 U.S. 683, 690–91 (1986)). Second,

considering the evidence in the light most favorable to the prosecution, the court

found sufficient evidence of the elements of robbery with a dangerous weapon.

Id. at *5 (citing Okla. Stat. tit. 21, § 801; Jackson v. Virginia, 443 U.S. 307, 319

(1979)). As for the claim of an excessive sentence, the court determined that his

sentence was not outside the statutory limits and that Mr. Winston did not show

that his sentence was grossly disproportionate to the crime. Id. at *6 (citing Okla.

Stat. tit. 21, § 51.1(B); Lockyer v. Andrade, 538 U.S. 63, 77 (2003)). Finally, the

court found that counsel’s strategy was reasonable. Id. at *7–8 (citing Strickland

v. Washington, 466 U.S. 668, 687, 699 (1984)).

      In order for this court to grant a COA, Mr. Winston must make “a

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substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where, as here, a

petition is dismissed on the merits, the petitioner must show that reasonable

jurists would find it debatable whether the petition states a valid constitutional

claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      We have carefully reviewed Mr. Winston’s application for a COA and

brief, the district court’s thorough opinion, and the record. We conclude that Mr.

Winston fails to make a substantial showing of the denial of a constitutional right

and that no reasonable jurist could debate the correctness of the district court’s

decision. Accordingly, we DENY a COA and DISMISS the appeal. We also

DENY Mr. Winston’s motion objecting to the denial of appointment of counsel.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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