                                                                         FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 29, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 DAVEY JOE SUTTON,

                 Petitioner-Appellant,                  No. 11-7046
          v.                                           (E.D. of Okla.)
 DEPARTMENT OF CORRECTIONS,                (D.C. No. 6:08-CV-00134-JHP-KEW)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Davey Joe Sutton, a former Oklahoma state prisoner, seeks a certificate of

appealability (COA) to challenge the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. 1 The magistrate judge’s report and

      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        While Sutton’s sentence has since expired, the threshold “in custody”
determination required by 28 U.S.C. § 2241(c)(3) was made by the district court
below and carries throughout the habeas process. See R., Vol. I at 32–33;
Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (a petitioner’s challenge to his
conviction is not rendered moot by the fact that the underlying sentence has
                                                                      (continued...)
recommendation suggested denial of habeas relief on all of Sutton’s claims. The

federal district court adopted the report and recommendation and denied the

habeas petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),

and for substantially the same reasons set forth by the magistrate judge, we find

Sutton has failed to make the requisite showing for a COA and therefore DENY

his request.

                                  I. Background

      Davey Sutton is a former Oklahoma state prisoner. In 2004, Sutton was

convicted by a jury of Witness Intimidation, in violation of Okla. Stat. tit. 21,

§ 455. Sutton was sentenced to one-year imprisonment with the last six months

of the sentence suspended. The OCCA affirmed his conviction on direct appeal.

Sutton v. State, No. F-2004-1234 (Okla. Crim. App. Sept. 20, 2006).

      Sutton instituted this § 2254 action in federal district court, asserting four

grounds for relief: (1) the element “mental harm,” as used in Okla. Stat. tit. 21,

§ 455 is unconstitutionally vague; (2) the evidence was insufficient to support the

conviction; (3) the trial court misinstructed the jury on elements of the offense;

and (4) the prosecutor told the jury that Sutton was charged with this crime

because the grand jury had proof beyond a reasonable doubt. The Respondent


      1
        (...continued)
expired because collateral consequences flowing from the conviction give the
petitioner “a substantial stake in the judgment of conviction which survives the
satisfaction of the sentence imposed on him”).

                                         -2-
conceded that Sutton had exhausted his state court remedies. In a 20-page report

and recommendation, the magistrate judge rejected all of Sutton’s claims. Upon

de novo review, the district court adopted the magistrate judge’s recommendation

and dismissed Sutton’s petition.

                                    II. Discussion

      To appeal the district court’s denial of his § 2254 petition, Sutton must

obtain a COA by making “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

“[A] claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that [the]

petitioner will not prevail.” Id.

      For substantially the same reasons set forth by the magistrate judge, we

find that Sutton has failed to make the requisite showing for a COA. The

magistrate judge’s 20-page report and recommendation thoroughly analyzes the

record and is supported by the applicable law. While he raised four claims below,

Sutton has only raised two claims before this court: (1) the evidence was




                                         -3-
insufficient to support the conviction; and (2) the element “mental harm,” as used

in Okla. Stat. tit. 21, § 455, is unconstitutionally vague. 2

      With respect to his claim that the evidence was insufficient to support the

conviction, we agree with the magistrate judge that a rational trier of fact could

have found each of the essential elements of the crime beyond a reasonable doubt.

Magistrate Judge’s Report and Recommendation at 4–17; see also Jackson v.

Virginia, 433 U.S. 307, 319 (1979). With respect to his claim that the statutory

term “mental harm” was unconstitutionally vague, we agree with the magistrate

judge that “when considered in the context of the rest of the statute, the OCCA’s

analysis of the term neither contravened nor unreasonably applied federal law.”

Magistrate Judge’s Report and Recommendation at 4. The statute adequately

defines the criminal conduct such that “ordinary people can understand what

conduct is prohibited,” and does so without “encourag[ing] arbitrary and

discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).

      In sum, none of the grounds asserted rises to the level of a substantial

showing of a denial of a constitutional right as required for a COA to issue.




      2
         Sutton identifies four specific instances of insufficient evidence in his
brief; as the district court also chose to do, they are consolidated under a single
heading here.

                                           -4-
                              III. Conclusion

     For the reasons stated above we DENY Sutton’s application for a COA and

DISMISS his appeal.



                                                Entered for the Court,

                                                Timothy M. Tymkovich
                                                Circuit Judge




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