                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 15, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 KEVIN DEWAYNE WINCHESTER,

              Petitioner - Appellant,                    No. 11-6175
       v.                                              W. D. Oklahoma
 JUSTIN JONES,                                   (D.C. No. 5:10-CV-00307-R)

              Respondent - Appellee.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.




      Petitioner, Kevin Dewayne Winchester, seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Winchester has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      After a jury trial, Winchester was convicted of first degree murder, in

violation of Okla. Stat. tit. 21, § 701.7(A), and sentenced to life imprisonment
without the possibility of parole. Winchester raised three issues on direct appeal:

(1) his Sixth Amendment right of confrontation was violated when the trial court

permitted the introduction of the victim’s petition for a protective order, (2) the

judge erroneously refused to instruct the jury on the lesser-included offense of

first degree heat of passion manslaughter, and (3) the sentence imposed was

excessive. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the

conviction in an unpublished opinion. Winchester then filed an application for

post-conviction relief with the Oklahoma district court, raising five claims of

error. With the exception of allegations of ineffective assistance of trial and

appellate counsel, the court concluded Winchester’s claims were barred from

post-conviction review because he was attempting to re-argue issues already

raised on direct appeal or issues that could have been raised on direct appeal. See

Thomas v. State, 888 P.2d 522, 525 (Okla. Crim. App. 1994). As to Winchester’s

claims of ineffective assistance of counsel, the state district court applied the test

set forth in Strickland v. Washington, 466 U.S. 668 (1984), and denied relief. The

OCCA affirmed the denial of post-conviction relief on February 10, 2010.

      Winchester filed the instant § 2254 habeas petition on March 26, 2010. In

his petition, Winchester raised six claims of error. Winchester first argued the

evidence was insufficient to sustain his conviction. Because this claim was not

asserted on direct appeal, the Oklahoma courts refused to consider it in the state




                                          -2-
post-conviction proceeding. Thomas, 888 P.2d at 525. The federal district court 1

concluded the state procedural bar was independent and adequate and Winchester

failed to show cause for the default and actual prejudice or that the failure to

review his claims would result in a fundamental miscarriage of justice. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The court nevertheless

considered the claim on the merits, concluding Winchester was not entitled to

relief because a reasonable jury could have convicted him based on the evidence

presented at trial. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      The district court next considered Winchester’s claimed violation of his

Fourteenth Amendment right to due process and his Eighth Amendment right not

to be subjected to cruel and unusual punishment. This claim was grounded in

Oklahoma law which did not permit Winchester to allocute before sentencing

because he chose a jury trial, not a bench trial. See Malone v. State, 58 P.3d 208,

209-10 (Okla. Crim. App. 2002) (“In all other cases, i.e., when the defendant has

demanded the jury to assess punishment or the trial judge has allowed the jury to

assess punishment, there simply is no provision allowing for mitigating evidence

to be presented in the sentencing stage of the trial.”); Okla. Stat. tit. 22, § 983

(2001). After thoroughly analyzing this claim, including Winchester’s argument


      1
       Winchester’s claims were first considered by a United States Magistrate
Judge who prepared a comprehensive Report and Recommendation. Winchester’s
timely filed objections were considered de novo by the district court before it
adopted the Report and Recommendation.

                                          -3-
that Graham v. Florida, 130 S. Ct. 2011 (2010) and Simmons v. United States,

390 U.S. 377 (1968), supported his position, the district court concluded

Winchester’s claim failed because it did not implicate any constitutional rights.2

See Scrivner v. Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995) (“A trial court’s

failure to afford a defendant the right of allocution raises neither a jurisdictional

nor a constitutional error cognizable in habeas.”). The district court also denied

Winchester an evidentiary hearing on this claim because, inter alia, he failed to

specify the mitigating evidence he would have presented. The district court

likewise concluded that Winchester’s claim that the trial court erroneously failed

to instruct the jury on a lesser-included offense failed to implicate a constitutional

right. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (“The Supreme

Court has never recognized a federal constitutional right to a lesser included

offense instruction in non-capital cases . . . and neither has this court.”).

      The district court next reviewed Winchester’s claim that the admission of

the victim’s application for a protective order violated his rights under the

Confrontation Clause. Applying the standard set forth in the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), the court concluded the Oklahoma

courts’ adjudication of this claim was not contrary to, nor an unreasonable

application of clearly established federal law. 28 U.S.C. § 2254(d). Although

      2
        Although this claim was not presented to the Oklahoma courts and the
district court concluded it was subject to an anticipatory procedural default, the
district court considered it on the merits.

                                          -4-
Winchester’s Eighth Amendment claim was also presented to the Oklahoma

courts, the district court reviewed it de novo, concluding there was no Eighth

Amendment violation and Winchester was not entitled to relief. See Harmelin v.

Michigan, 501 U.S. 957, 994-95 (1991). The district court also rejected

Winchester’s claim of cumulative error. See Darks v. Mullin, 327 F.3d 1001,

1018 (10th Cir. 2003) (noting that cumulative error applies only to two or more

individually harmless constitutional errors).

      Winchester is before this court seeking a COA on all claims raised in his

§ 2254 petition with the exception of his sufficiency of the evidence claim. This

court cannot grant Winchester a COA unless he can demonstrate “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) (quotations omitted). In evaluating whether Winchester has

carried his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims.

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Winchester is not required to

demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).




                                          -5-
      This court has reviewed Winchester’s application for a COA and appellate

brief, the magistrate judge’s Report and Recommendation, the district court’s

Order, and the entire record on appeal pursuant to the framework set out by the

Supreme Court in Miller-El and concludes Winchester is not entitled to a COA.

The district court’s resolution of Winchester’s claims is not reasonably subject to

debate and the claims are not adequate to deserve further proceedings.

      Because Winchester has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

Accordingly, this court denies Winchester’s request for a COA and dismisses this

appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




                                        -6-
