                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      February 6, 2006
                          FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 JORGE LUIS BRAVO,

            Petitioner-Appellant,

   v.                                                  No. 05-6111
                                                (D.C. No. 04-CV-00974-W)
 TIM O’DELL, Warden,                                   (W.D. Okla.)

            Respondent-Appellee.


                                     ORDER


Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.



        Jorge Luis Bravo was convicted by a jury in Comanche County, Oklahoma

of: (1) murder in the first degree, felony murder; and (2) conspiracy to commit

robbery with a dangerous weapon. The murder and robbery occurred at a U-Haul

store in Lawton, Oklahoma, where Mr. Bravo was employed, and the murder

victim was J.C. Perryman, Jr., another U-Haul employee. Mr. Bravo was

sentenced to life imprisonment on the felony murder charge and seven-years’

imprisonment on the conspiracy charge, with the sentences to be served

consecutively. Mr. Bravo’s convictions were affirmed by the Oklahoma Court of

Criminal Appeals (OCCA) on direct appeal. See Aplt. App., Vol. II at 103-10.
Mr. Bravo now seeks a certificate of appealability (COA) to appeal the district

court’s order denying his application for a writ of habeas corpus under 28 U.S.C.

§ 2254. We deny his request for a COA and dismiss this appeal.

      I. Background.

      In his report and recommendation to the district court, the magistrate judge

accurately summarized the background of this case as follows:

             Petitioner Bravo was charged along with three co-defendants,
      Isaiah Walton, Bruce Taylor, and Maurice Poole, with shooting J.C.
      Perryman, Jr. during the robbery or attempted robbery of a U-Haul
      store in Lawton, Oklahoma, on October 21, 2000. Petitioner’s trial
      was severed at his request from those of his co-defendants/co-
      conspirators and his trial was conducted on February 11-15, 2002, in
      the Comanche County District Court. The jury found Petitioner
      guilty on both charges and recommended a sentence of seven years of
      imprisonment for the conspiracy conviction. In a second stage
      proceeding concerning only the murder conviction, the jury was
      instructed to consider whether Petitioner should receive the death
      penalty for the homicide based on the aggravating circumstance of
      knowingly creating a risk of death to more than one person. The jury
      recommended a sentence of life imprisonment with the possibility of
      parole. Petitioner was sentenced on February 28, 2002, in
      accordance with the jury’s verdict, and the presiding judge ordered
      that the sentences be served consecutively.

             Petitioner appealed the convictions, asserting as grounds for
      relief that (1) the State presented insufficient evidence to support the
      convictions, (2) Petitioner’s convictions violate the constitutional
      prohibition against double jeopardy and Okla. Stat. tit. 21, § 11
      (1991), (3) the trial court committed reversible error and violated
      Petitioner’s rights under the Sixth and Fourteenth Amendments by
      suppressing evidence regarding the confession of co-defendant Isaiah
      Walton, (4) the trial court committed reversible error by failing to
      hold a “Harjo” hearing to determine the scope, object, and duration
      of the alleged conspiracy, (5) Petitioner was prejudiced and his right

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      to an impartial jury was violated when the trial court failed to vacate
      the verdict on the issue of guilt or innocence after a juror disclosed a
      communication with a member of the victim’s family prior to the
      entry of the verdict, (6) Petitioner was denied a fair trial as a result
      of improper leading and suggestive questioning by the prosecutor
      during trial, (7) the trial court’s error in failing to instruct the jury
      concerning the use of accomplice testimony denied petitioner a fair
      trial, and (8) cumulative errors during the trial denied Petitioner a
      fair trial. The State responded in opposition to the issues raised by
      Petitioner in his appeal. In a summary opinion filed May 15, 2003,
      the [OCCA] affirmed Petitioner’s convictions.

Aplt. App., Vol. I at 5-7 (citations omitted).

      II. Standard of Review.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), a COA 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). To make the

necessary substantial showing, “a petitioner must sho[w] 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) (quotations omitted).

      In addition, “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). Because “we incorporate

AEDPA deference into our COA analysis, . . . [Mr. Bravo] cannot obtain a COA


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unless we find that reasonable jurists could debate whether the [OCCA’s]

decision was not merely wrong but unreasonable, either as a determination of fact

or as an application of clearly established federal law.” Id. at 940.

      III. Issues Three Through Eight.

      In this appeal, Mr. Bravo is seeking habeas relief based on the same issues

that he raised on direct appeal and in the district court. See Aplt. Br. at 1-2.

Having considered issues three through eight (double jeopardy, suppression of

confession of co-defendant, failure to hold a “Harjo” hearing, unauthorized

communication between a member of the jury and a member of the victim’s

family, prosecutorial misconduct, and cumulative error), we deny Mr. Bravo’s

request for a COA on those issues for substantially the same reasons set forth in

the magistrate judge’s well-reasoned and thorough report and recommendation.

See Aplt. App., Vol. I at 12-30.

      IV. Sufficiency of the Evidence.

      The only remaining issue for us to consider is “[w]hether the district court

erred in holding that the [OCCA] did not unreasonably apply the standard of

Jackson v. Virginia in holding that sufficient evidence was presented to support

Mr. Bravo’s conviction[s] for First Degree Murder and Conspiracy to Commit

Robbery [with a Dangerous Weapon].” Aplt. Br. at 1. We conclude that the

district court did not err.


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       “When reviewing the sufficiency of the evidence in a habeas corpus action

‘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.’” Dockins, 374 F.3d

at 939 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

omitted)). “This standard of review respects the jury’s responsibility to weigh the

evidence and to draw reasonable inferences from the testimony presented at trial.”

Id. As noted above, because the OCCA “rejected [Mr. Bravo’s] claim of

insufficient evidence on its merits, . . . we [also] incorporate the deference for

state court decisions called for by AEDPA in evaluating [his] request for COA.”

Id.

       As pointed out by the magistrate judge, “[i]n this case, the sufficiency of

the evidence inquiry is based on Oklahoma law which defines the substantive

elements of the crime[s].” Aplt. App., Vol. I at 10 (citing Jackson, 443 U.S.

at 309, 324 n.16). As further explained by the magistrate judge, under Oklahoma

law,

       [“]A person . . . commits the crime of murder in the first degree,
       regardless of malice, when that person or any other person takes the
       life of a human being during, or if the death of a human being results
       from, the commission [or attempted commission of] . . . robbery with
       a dangerous weapon. . . .” Okla. Stat. tit. 21, § 701.7[B]. In
       Oklahoma, a conspiracy to commit robbery with a dangerous weapon
       requires proof of an agreement by two or more persons to commit
       robbery with a dangerous weapon and an overt act by one or more of

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      the parties performed subsequent to the formation of the agreement
      in furtherance of the agreement. Jones v. State, 965 P.2d 385, 386
      (Okla. Crim. App. 1998).

Id.

      On direct appeal, the OCCA concluded that there was sufficient evidence to

support both of Mr. Bravo’s convictions. With regard to the conspiracy

conviction, the OCCA found that “the existence of the conspiracy is clearly

supported by evidence that an agreement to rob the U-Haul store was reached

between [Mr. Bravo] and the other conspirators.” Id., Vol. II at 105. With regard

to the felony murder conviction, the OCCA determined “that a rational trier of

fact could have found that [Mr. Bravo] was in the commission of the robbery

when Perryman was shot by one of the co-conspirators.” Id. We agree with the

district court that “the OCCA’s determination that there was sufficient evidence

presented at trial to support the jury’s findings that Bravo was guilty of murder in

the first degree . . . and conspiracy to commit robbery with a dangerous weapon

. . . was neither contrary to, nor an unreasonable application of federal law.” Id.,

Vol. I at 33.

      First, as set forth in the magistrate judge’s report and recommendation,

there is an abundance of evidence in the trial court record to support Mr. Bravo’s

conspiracy conviction. Id. at 11-12. Because the magistrate judge accurately




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summarized the relevant evidence that supports the conspiracy conviction, we see

no need to discuss that evidence here.

      Second, while it is a much closer issue, we also conclude that the state

presented sufficient evidence to support the felony murder conviction. In

accordance with Oklahoma law, the jury was instructed as follows with regard to

the felony murder charge:

               The defendant, Jorge Luis Bravo, is charged in the information
      with Count I, murder in the first degree felony murder, . . . in the
      manner and form as follows, to wit: that the said Jorge Luis Bravo,
      on the 21st day of October, 2000, in Comanche County, Oklahoma,
      did conjointly while acting together with Bruce Latarrance Taylor,
      Isaiah Crayton Walton, and Maurice Poole, unlawfully, wilfully,
      knowingly, and feloniously . . . affect the death of one J.C. Perryman,
      Jr., . . . by shooting him in the head with an Intertec nine millimeter
      pistol, causing mortal wounds in the body of the said J.C. Perryman,
      Jr., . . . all while the said defendants were engaged in committing the
      felony of robbery with a dangerous weapon, 21 Oklahoma Statute
      Section 801 . . . .

             ....

             No person may be convicted of murder in the first degree
      felony murder unless the State has proved beyond a reasonable doubt
      each element of the crime. These elements are, first, the death of a
      human; second, the death occurred as a result of an act or event
      which happened in the commission of a robbery or attempted robbery
      with a dangerous weapon; third, caused by any person engaged with
      the defendant while in the commission of a robbery with a dangerous
      weapon . . . .

             A person is in the commission of robbery or attempted robbery
      with a dangerous weapon when he is performing an act which is
      necessary in order to complete the course of conduct constituting
      robbery with a dangerous weapon. . . .

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Id., Vol. VI at 735-38.

      Mr. Bravo is not challenging the correctness of these instructions. As a

result, we will assume that they are correct under Oklahoma law, and that the jury

was properly instructed with regard to the elements of the felony murder charge.

In addition, Mr. Bravo does not dispute that Taylor, Walton, and Poole were

engaged in the commission of a robbery or an attempted robbery with a dangerous

weapon at the time one of them shot Perryman. Mr. Bravo claims, however, that

he was not engaged in the commission of the robbery or attempted robbery

because: (1) he was not inside the U-Haul store at the time of the robbery or

attempted robbery, but was instead outside of the store performing his regular

end-of-the-day closing duties; and (2) he “performed not one act which could be

described as an act necessary to complete the illegal course of conduct,” Aplt. Br.

at 35, and he therefore “did nothing to further or aid the ability of the

co-defendants to rob the U-Haul office,” id. at 34.

      We reject Mr. Bravo’s claim that the state failed to put forth evidence

showing that he performed an act which was necessary to complete the robbery or

attempted robbery. A videotape and written transcript of Mr. Bravo’s third

statement to the police were admitted into evidence during the prosecution’s

case-in-chief, and Mr. Bravo’s statement provides the evidentiary support for the

felony murder conviction. See Aplt. App., Vol. V at 585-88, 597; Vol. VI


                                          -8-
at 658-660; Vol. VIII at 960-1054. Specifically, in his statement to the police,

Mr. Bravo stated: (1) that he met with Taylor approximately an hour and a half

before the robbery took place; (2) that Taylor informed him that the robbery was

going to take place that evening; and (3) that he informed Taylor that there would

be only one employee inside the U-Haul store if the robbery took place at

6:45 p.m. that evening. 1 Id., Vol. VIII at 1020-21, 1023-26. Further, Mr. Bravo

admitted that he had planned the robbery with Taylor, id. at 1031, and that he

knew that Taylor intended to use a gun during the robbery, id. at 1034-35. Given

this evidence, we agree with respondent that

      [t]he record, including [Mr. Bravo’s] own statements, sufficiently
      proves [Mr. Bravo] knew the robbery was going to take place on the
      evening of the murder and that he furthered the effort by informing
      Mr. Taylor that only the victim would be in the building at 6:45 p.m.,
      . . . and by being out of the building while his accomplices were
      there to complete the robbery.



1
       Mr. Bravo also admitted that he told Taylor that he would leave the keys to
the office safe “on top of the safe.” Aplt. App., Vol. VIII at 1024. However, it is
unclear from the evidence presented at trial whether Mr. Bravo actually did leave
the keys on top of the safe. It is also undisputed that the safe was not opened
during the robbery. Consequently, we will not consider Mr. Bravo’s statement
regarding the keys as part of our sufficiency of the evidence review. Similarly,
while “[t]here was also evidence presented at trial that a short time before the
robbery [Mr. Bravo] aggressively attempted to convince a customer not to come
to the [U-Haul] store,” Aplt. App., Vol. I at 11, it does not appear that this
conduct was “necessary in order to complete the course of conduct constituting
[the] robbery,” id., Vol. VI at 738. In fact, the robbery took place despite the
presence of customer Carolyn Brown inside the U-Haul store, and Ms. Brown was
brutally assaulted during the course of the robbery.

                                         -9-
Respondent’s Resp. to Pet. for Writ of Habeas Corpus at 9 (D. Ct. R., Doc. 12).

      Accordingly, because there was sufficient evidence in the trial court record

to support Mr. Bravo’s conspiracy and felony murder convictions, we conclude

that the OCCA’s determination of the sufficiency of the evidence issues was

reasonable, “either as a determination of fact or as an application of clearly

established federal law.” Dockins, 374 F.3d at 940.

      The application for a COA is DENIED and this matter is DISMISSED.


                                                Entered for the Court
                                                ELISABETH A. SHUMAKER, Clerk

                                                By:
                                                      Deputy Clerk




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