                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         March 16, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court

 RICHARD EWALT,

       Petitioner - Appellant,
                                                        No. 05-5024
 v.                                           (D.C. No. 01-CV-413-TCK-PJC)
                                                        (N.D. Okla.)
 RANDALL WORKMAN, sued as:
 Randy Workman,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, MCKAY, and LUCERO, Circuit Judges.


      Petitioner-Appellant Richard Burton Ewalt, III, a state inmate appearing

through counsel, seeks a certificate of appealability (“COA”) so that he may

appeal the district court’s denial of his 28 U.S.C. § 2254 petition for habeas

relief. Because we determine that he has not made “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 483-84 (2000), we deny his request for a COA and dismiss his appeal.

      Mr. Ewalt was convicted by a jury in Oklahoma state court of second

degree murder (Count 1) and use of a vehicle to facilitate discharge of a weapon

(Count 2) in violation of Okla. Stat. tit. 21 §§ 701.8(1) and 652(B), respectively.
He was sentenced to life imprisonment for Count 1 and twenty years

imprisonment for Count 2. The sentences were ordered to run concurrently. The

conviction stemmed from the August 1996 fatal shooting of Jesus Siguala.

      Mr. Ewalt appealed his convictions and sentences. On appeal, he argued

that (1) the trial court erred by improperly instructing the jury that second-degree

murder was a lesser included offense of first degree murder, the crime he was

charged with; (2) he was acting in self-defense, and defense counsel was

ineffective for failing to request a self-defense instruction; (3) the sentence for

use of a vehicle to facilitate discharge of a weapon should be vacated because the

State dismissed the charge following the trial; (4) the trial court erred by not

allowing jurors to take notes; and (5) his conviction for use of a vehicle to

facilitate discharge of a weapon was not supported by competent evidence. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Ewalt’s convictions

and sentences, R. Doc. 1 Attach.; Doc. 9 Ex. C, and subsequently denied his

petition for rehearing.

      Mr. Ewalt then filed his federal habeas petition pursuant to 28 U.S.C. §

2254. In it, he raised three issues as follows: (1) his conviction for second degree

murder, a crime with which he was never charged, violates due process and the

OCCA’s ruling that second degree murder is a lesser included offense of first

degree murder violates the principle against ex post facto laws; (2) he was acting


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in self-defense, the two convictions were based on insufficient evidence, and

defense counsel was ineffective for failing to request a self-defense instruction;

and (3) his conviction for use of a vehicle to facilitate discharge of a weapon is

not supported by competent evidence.

       The district court carefully considered each of Mr. Ewalt’s claims but

denied relief as to all of them. R. Doc. 14. In order for this court to grant a

COA, Mr. Ewalt must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court

has rejected a habeas petitioner’s constitutional claims on the merits, the

petitioner must demonstrate that “reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at

484.

       Citing Williams v. Taylor, 529 U.S. 362, 402 (2000), the district court

recognized that the claims asserted by Mr. Ewalt were presented to the OCCA and

denied by that court. As such, the district court could not properly issue a writ of

habeas corpus unless it found that the state court adjudication resulted in a

decision that “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or . . . was based on an unreasonable determination of the facts in light of the

evidence presented at the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2);


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Jackson v. Ray, 390 F.3d 1254, 1259 (10th Cir. 2004). Federal courts evaluating

§ 2254 petitions must presume that state court factual findings are correct. See 28

U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

The habeas petitioner bears the burden of rebutting that presumption by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1); see also, e.g., Darks v. Mullin,

327 F.3d 1001, 1007 (10th Cir.), cert denied, 540 U.S. 968 (2003). It is against

these standards that the district court’s denial of Mr. Ewalt’s petition must be

assessed.

      Having carefully reviewed his arguments, the OCCA’s opinion, the district

court’s thorough order rejecting the claims, and the record on appeal, we conclude

that reasonable jurists would not find the district court’s resolution of the issues

raised by Mr. Ewalt fairly debatable. We conclude, therefore, that Mr. Ewalt has

not made “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); Slack, 529 U.S. at 483-84.

      Accordingly, we DENY a COA and DISMISS this appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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