                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 28 2000
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


WILEY GENE JULY,

          Petitioner-Appellant,
                                                          No. 00-7029
v.                                                 (E. District of Oklahoma)
                                                    (D.C. No. 98-CV-355-S)
RON CHAMPION,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining Petitioner’s brief and the 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 court therefore orders the case submitted without oral argument.

      Wiley Gene July, proceeding    pro se , seeks a certificate of appealability

(“COA”) to enable him to appeal the district court’s denial of the habeas petition


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
he filed pursuant to 28 U.S.C. § 2254.   See 28 U.S.C. § 2253(c)(1)(A) (providing

that an appeal may not be taken from the denial of a § 2254 habeas petition

unless the petitioner first obtains a COA). July was convicted of first degree

murder in Oklahoma state court and received a sentence of life without parole.

July filed a direct appeal with the Oklahoma Court of Criminal Appeals

(“OCCA”). July raised four issues in his direct appeal: (1) the denial of the

assistance of an expert at his trial violated his rights to due process and the

effective assistance of counsel; (2) statements he gave during custodial

interrogations were not made voluntarily because he was intoxicated; (3) the

waiver of his Miranda rights was not made knowingly, voluntarily, and

intelligently; and (4) the state trial court erred when it denied his request to

instruct the jury on voluntary intoxication and on the lesser-included offense of

first degree manslaughter.

      The OCCA addressed each of July’s claims and issued an opinion wherein

it affirmed July’s conviction and sentence. July filed the instant § 2254 habeas

petition with the United States District Court for the Eastern District of

Oklahoma on July 20, 1998. In his habeas petition, July reasserted the four

claims he raised before the OCCA.

      The district court assigned the matter to a United States magistrate judge

who made findings and recommended July’s habeas petition be dismissed. After



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reviewing July’s objections, the district court adopted the magistrate judge’s

findings and recommendation, and dismissed July’s petition. The district court

also refused to grant July a COA and denied his motion to proceed          in forma

pauperis on appeal. July’s renewed request to proceed          in forma pauperis is

granted.

       July filed his habeas petition after April 24, 1996 and, therefore, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this court’s

review of his claims. Each of July’s claims has already been addressed by the

OCCA on the merits. Under the standards of review set out in 28 U.S.C. §

2254(d), therefore, this court cannot grant the writ of habeas corpus unless the

state court’s decision “was contrary to, or involved an unreasonable application

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

United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented at trial.”     Id. §

2254(d)(2); see also Williams v. Taylor , 120 S. Ct. 1495, 1518-23 (2000)

(interpreting 28 U.S.C. § 2254(d)(1)).

       July first claims that his due process rights were violated because the state

of Oklahoma refused to hire an expert to assist him in presenting a defense of

involuntary intoxication. He further claims this denial rendered his counsel

ineffective. Both elements of this claim were addressed by the OCCA in July’s



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direct appeal. The OCCA concluded that July had failed to make a preliminary

showing that he needed the assistance of an expert.        See Ake v. Oklahoma , 470

U.S. 68, 82-83 (1985); Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 (1985)

(interpreting Ake to require “more than undeveloped assertions that the requested

assistance would be beneficial”).

       The OCCA further concluded that July failed to demonstrate that he

suffered any prejudice because of the state’s failure to provide an expert. The

OCCA noted that an expert would not have been permitted to testify regarding

July’s capability to form the requisite intent to commit first degree murder.       See

Hooks v. State , 862 P.2d 1273, 1279 (Okla. Crim. 1993). The OCCA further

noted that the state medical examiner was available to testify as to the “general

characteristics of intoxication” and that July could have presented other witness

“to testify as to his level of intoxication.”     See Strickland v . Washington , 466

U.S. 668, 687 (1984) (holding that petitioner must show both that his counsel

was ineffective and that he was prejudiced by counsel’s deficient performance).

The OCCA, thus, concluded that July had failed to establish that he was

prejudiced by the failure to appoint an expert. After a thorough review of the

record, this court agrees with the district court that the OCCA’s disposition of

this claim is not “contrary to” or an “unreasonable application of, clearly

established Federal law.”      Williams , 120 S. Ct. at 1523.



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       July next claims that statements he made to police officers during custodial

interrogations should have been excluded because they were not made

voluntarily. The OCCA applied the “totality of the circumstances” test to

determine whether July’s confession was voluntary.      See Arizona v. Fulminante ,

499 U.S. 279, 285 (1991). In reaching the conclusion that July’s statements were

given voluntarily, the OCCA relied on evidence in the record that despite his

intoxication, July appeared rational and gave coherent, appropriate responses to

all questions asked of him. The OCCA also noted the lack of evidence that July

was coerced into making the statements.

       The OCCA also rejected July’s claim that his waiver of his    Miranda rights

was not made knowingly, voluntarily, and intelligently because of his

intoxication. The OCCA specifically found that July was Mirandized before he

made statements to the police and that he unequivocally indicated to police that

he understood his rights as they were explained to him by the officer. The OCCA

also found that the record contained no evidence that July was intimidated or

coerced into waiving his constitutional rights.   See Moran v. Burbine , 475 U.S.

412, 421 (1986) (holding that    Miranda rights are properly waived if “the totality

of the circumstances surrounding the interrogation reveal[s] both an uncoerced

choice and the requisite level of comprehension”). The OCCA’s disposition of

July’s claims relating to statements he made to police officers is neither “contrary



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to” nor an “unreasonable application of, clearly established Federal law” and is

not “based on an unreasonable determination of the facts in light of the evidence

presented at trial.” 28 U.S.C. § 2254(d)(1), (2).

       July’s final argument is that the trial court improperly failed to instruct the

jury on the lesser-included offense of voluntary manslaughter and improperly

failed to given an instruction on voluntary intoxication. July’s claim relating to

the lack of an instruction on the lesser-included offense fails because this court

has held that a state court’s failure to give a lesser-included instruction in a non-

capital case never raises a constitutional question.     See Lujan v. Tansay , 2 F.3d

1031, 1036-37 (10th Cir. 1993). Because § 2254 can be invoked only to correct

violations of the United States Constitution, July’s claim on the lesser-included

instruction, is not cognizable in a § 2254 habeas petition.     See Estelle v. McGuire ,

502 U.S. 62, 67-68 (1991).

       July’s claim that his due process rights were violated by the trial court’s

failure to instruct the jury on voluntary intoxication also fails. July raised his

claim before the OCCA; the OCCA concluded July had failed to introduce any

evidence that “he was so intoxicated that he was unable to form the necessary

intent to kill.” Even if this court were to conclude the state court erred by failing

to give the requested jury instruction, July is not entitled to relief on this claim in

a § 2254 habeas petition unless the state court’s error “had the effect of rendering



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

constitutional sense.”   Brinlee v. Crisp , 608 F.2d 839, 854 (10th Cir. 1979). After

a thorough review of the record, this court concludes July’s trial was not rendered

fundamentally unfair by the state court’s failure to give the requested instruction

on voluntary intoxication.

       July must make a “substantial showing of the denial of a constitutional

federal right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2). July may

make this showing by demonstrating the issues raised are debatable among

jurists, a court could resolve the issues differently, or that the questions presented

deserve further proceedings.    See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04

(2000). Upon review of the relevant case law, July’s appellate brief and his

application for a COA, and the entire record on appeal, we agree with the district

court’s conclusion that July has failed to demonstrate that the OCCA’s

adjudication of his claims is “contrary to, or involved an unreasonable

application of, clearly established Federal law,” or is “based on an unreasonable

determination of the facts in light of the evidence presented at trial.” 28 U.S.C. §

2254(d)(1), (2). July’s claims on appeal, therefore, lack merit.

       This court concludes the issues raised by July are not reasonably debatable,

subject to a different resolution on appeal, or deserving of further proceedings.

July has not made a substantial showing of the denial of a federal right and he is



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not entitled to a COA.   See 28 U.S.C. § 2253(c)(2). Consequently, we   deny

July’s application for a COA   and dismiss his appeal for substantially those

reasons set out in the magistrate judge’s findings and recommendation dated

November 8, 1999.

                                                ENTERED FOR THE COURT:



                                                Michael R. Murphy
                                                Circuit Judge




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