                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      March 25, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 LELAND WAYNE STEWARD,

               Petitioner - Appellant,                    No. 07-7079
          v.                                           (E. D. Oklahoma)
 RANDALL G. WORKMAN, Warden,                  (D.C. No. 04-cv-00350-FHS-KEW)
 Lexington Assessment and Reception
 Center,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Leland Wayne Steward was convicted by a jury on four counts of felony

murder in Oklahoma state court after he set fire to his trailer house, killing his

wife, Amanda Steward, and their three children. On each count he was sentenced

to life in prison without the possibility of parole. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed all four convictions on direct appeal. He then


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filed in the United States District Court for the Eastern District of Oklahoma a

pro se application under 28 U.S.C. § 2254, which the district court denied. He

now seeks a certificate of appealability (COA) to appeal that denial. See id.

§ 2253(c) (requiring COA to appeal denial of application). Liberally construed,

see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), the application

raises four issues: (1) that his convictions were not supported by the evidence at

trial; (2) that the trial court erred in admitting other-crimes evidence; (3) that the

trial court erred in admitting hearsay; and (4) that the trial court erred in

admitting his involuntary statement to the police. We deny his request for a COA

and dismiss this appeal.

      “A certificate of appealability may issue . . . only if the applicant has made

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

§ 2253(c)(2). This standard requires “a demonstration that . . . includes showing

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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, an applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id. In determining whether

to issue a COA, a “full consideration of the factual or legal bases adduced in

support of the claims” is not required. Miller-El v. Cockrell, 537 U.S. 322, 336

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(2003). Instead, the decision must be based on “an overview of the claims in the

habeas petition and a general assessment of their merits.” Id.

      In addition, the Antiterrorism and Effective Death Penalty Act (AEDPA)

establishes deferential standards of review for state-court factual findings and

legal conclusions. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing

evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting

28 U.S.C. § 2254(e)(1)). If the federal claim was adjudicated on the merits in the

state court,

      we may only grant federal habeas relief if the habeas petitioner can
      establish that the state court decision “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 in the State court proceeding.”

Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). As we have stated:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that
      principle to the facts of the prisoner's case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.




                                         -3-
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations and

internal quotation marks omitted). Where, as here, the claims were adjudicated

on the merits in the state court, “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of a habeas petitioner’s

request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir .2004).

      Mr. Steward first contends that his convictions were not supported by the

evidence at trial. When reviewing the sufficiency of the evidence, “the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

(1979). Mr. Steward argues that the prosecution failed to prove that the fire was

arson and that he was responsible. He also raised this issue in his direct appeal to

the OCCA, which recited the evidence at length and rejected his argument. See

Op., Steward v. State, No. F-2002-1238 (Okla. Crim. App. Oct. 24, 2003)

(Steward I) at 1–10. Mr. Steward has failed to challenge, much less rebut by

clear and convincing evidence, the recitation of evidence by the OCCA.

Therefore, we accept its statement of facts as correct. See § 2254(e)(1). And no

reasonable jurist could debate that, based on that evidence, the conclusion was not

an unreasonable application of clearly established federal law.

      Next, Mr. Steward contends that the trial court erred in admitting testimony

from several witnesses that he had told them that he had been an arsonist for hire

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in Missouri and knew how to start untraceable fires. He states that this was

inadmissible other-crimes evidence. For support, he cites primarily to cases

addressing Oklahoma rules of evidence. But we will not set aside a conviction

for violations of state evidence rules. See Bullock v. Carver, 297 F.3d 1036, 1055

(10th Cir. 2002) (“a state court’s misapplication of its own evidentiary rules . . .

is insufficient to grant habeas relief.”). We will grant Mr. Steward relief only if

he can show that admission of the evidence denied him a fair trial. See id. He

has not made that showing. The OCCA explained that the evidence was relevant

to motive, intent, preparation, and/or absence of mistake. See Steward I at 12–13.

No reasonable jurist could debate that the OCCA decision was an unreasonable

application of clearly established federal law.

      Mr. Steward also complains that a prosecution witness testified that

Amanda had told him that “[i]f it gets too bad . . . I just go in the house and take

the kids and get in the bathroom and lock the door,” Steward I at 14. When

rescue workers arrived at the ruins of the trailer house, they found Amanda and

two of the children’s bodies barricaded in the bathroom and the third child’s body

just outside the bathroom door. Mr. Steward claims that the court’s admission of

Amanda’s statement violated his Sixth and Fourteenth Amendment rights. We

presume that he is referring to the Sixth Amendment’s Confrontation Clause,

which guarantees a criminal defendant “the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. But the Confrontation Clause

                                          -5-
restricts the admissibility of a hearsay statement only if the statement is

testimonial. See Crawford v. Washington, 541 U.S. 36, 68 (2004). The Supreme

Court in Crawford did not precisely define testimonial, but it indicated “that the

term encompasses formal statements to government officers, including at least

statements during police interrogation and prior testimony.” United States v.

Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006). Amanda’s statement was wholly

different; rather than a statement made for the purposes of prosecution, the

statement appears to have been a statement to a friend meant to allay concern for

her safety following an argument that Amanda had with Mr. Steward. See

Steward I at 14. No reasonable jurist could debate that the OCCA decision

affirming admission of the evidence was not an unreasonable application of

clearly established federal law.

      Finally, Mr. Steward claims that the trial court erred in admitting

statements that he had made to the police. He claims that the statements were

involuntary and that he had not intelligently waived his constitutional rights. The

OCCA held that the State had proved in a pretrial hearing that Mr. Steward had

knowingly and voluntarily waived his Miranda rights before speaking with the

police. No reasonable jurist could debate that this ruling was not an unreasonable

application of clearly established federal law.

      Because no reasonable jurist could debate the correctness of the district

court’s ruling, we DENY Mr. Steward’s request for a COA and DISMISS this

                                          -6-
appeal. We grant Mr. Steward’s application to proceed in forma pauperis. We

grant Mr. Steward’s motion for leave to file a supplemental brief.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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