                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        April 5, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 C HRISTO PH ER JA Y SM ITH ,

              Petitioner-A ppellant,                     No. 06-6364
       v.                                              (W .D. Oklahoma)
 JUSTIN JONES, Director,                          (D.C. No. CIV-06-128-C)

              Respondent-Appellee.




                                       OR DER


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Christopher Smith, proceeding pro se, seeks a certificate of appealability

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

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). M r. Smith also seeks leave to proceed in

forma pauperis (“IFP”).

      In his § 2254 petition, M r. Smith raises six contentions: (1) violation of his

Sixth and Fourteenth Amendment rights when the prosecution engaged in racial

discrimination in violation of Batson v. Kentucky, 476 U.S. 79 (1986), when it

struck minorities from the jury; (2) ineffective assistance of trial counsel pursuant
to Strickland v. Washington, 466 U.S. 668 (1984), for failure to (a) prepare for

trial, (b) investigate the case, (c) cross-examine certain witnesses, (d) object to

pre-trial photographic identification, and (e) object to certain evidence; (3)

ineffective assistance of appellate counsel for her failure to raise ineffectiveness

of trial counsel for his failure to (a) challenge the lawfulness of M r. Smith’s

arrest and (b) properly preserve the appellate record and also for (c) failure to

develop the record for direct review; (4) denial of due process because of a

“conflict of interest” created by the “scandalous personal relationship” between

then Oklahoma Court of Criminal Appeals (“OCCA”) Judge Steven Lile and

Comanche County District Attorney Robert Schulte; Rec. doc. 1, at 10, (5)

insufficiency of the evidence and factual innocence; and (6) violation of his Sixth

and Fourteenth Amendment rights based on cumulative error.

                                 I. BACKGROUND

      A District Court of Comanche County jury convicted M r. Smith of first-

degree felony murder, for which M r. Smith is serving a sentence of life

imprisonment without parole. The Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed his conviction on direct appeal and denied his application for

post-conviction relief. He then filed this § 2254 action. The magistrate judge, in

a thorough and well-reasoned report and recommendation, recommended that the

district court deny the petition. The district court reviewed and rejected M r.




                                          -2-
Smith’s objections to the report and recommendation, adopted the report and

recom mendation, and denied M r. Smith’s application for a COA.

                                  II. DISCUSSION

      In order to obtain a COA, M r. Smith must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to do so,

M r. Smith “must show that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” M iller-El

v. Cockrell, 537 U .S. 322, 336 (2003) (internal quotation marks omitted). “[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. at 338.

      Here, for substantially the same reasons as those set forth in the district

court’s order and the magistrate judge’s thorough report and recommendation, w e

conclude that M r. Smith is not entitled to a COA. First, the OCCA concluded that

the trial court did not abuse its discretion when it found that M r. Smith did not

meet his burden of establishing purposeful discrimination. The O CCA’s

conclusion w as not contrary to or an unreasonable determination of federal law ,

nor did it involve an unreasonable determination of the facts in the case. Second

and third, we agree with the OCCA’s conclusions that M r. Smith’s claims for

ineffectiveness of trial and appellate counsel did not satisfy the well-established


                                            -3-
Strickland standard. Thus, the OCCA’s rejection of those claims was not an

unreasonable application of federal law.

      Fourth, we agree with the OCCA’s conclusion that M r. Smith has not

established a conflict of interest between Judge Lile and the prosecutor. The

OCCA’s determination was also not contrary to or an unreasonable application of

federal law.

      Fifth, the OCCA, applying Jackson v. Virginia, 443 U.S. 307, 319 (1979),

held that there was sufficient evidence supporting the jury’s verdict. The victim

was shot with a .38 caliber hand gun, which wielded a hydro-shock hollow point

bullet. The authorities retrieved such a firearm, loaded with the same type of

bullets, from M r. Smith’s room. The victim, who ran a convenience store had

$3,000 stored in a can behind the counter on the day of her murder. Officers

found the same can, empty, on the counter after her death. M r. Smith was seen

with a large amount of cash shortly after the murder. He attempted to buy a car,

and spent $400 on jewelry. W hen officers arrested M r. Smith two days after the

murder, he had $813 in cash. The State also presented testimony that M r. Smith

was seen running across the road minutes after the murder occurred. In addition,

M r. Smith provided conflicting stories to law enforcement officials regarding his

whereabouts at the time of the murder. This evidence demonstrates that the

OCCA’s decision was not contrary to or an unreasonable application of Jackson.

      Finally, the OCCA’s rejection of M r. Smith’s sixth claim based on


                                           -4-
cumulative error, was not contrary to or an unreasonable application of federal

law. There can be no cumulative error analysis, because this analysis “does not

apply to the cumulative effect of non-errors.” M oore v. Reynolds, 153 F.3d 1086,

1113 (10th Cir. 1998).

                                III. CONCLUSION

      Based on our review of the record, the magistrate judge’s report and

recommendation, the district court’s order, and M r. Smith’s submissions to this

court, we are not persuaded jurists of reason would disagree with the district

court’s disposition of his petition. Accordingly, we DENY his request for a COA ,

DENY his motion to proceed IFP, and DISM ISS the matter.



                                Entered for the Court,
                                ELISABETH A. SHUM AKER, Clerk


                                By:
                                  Deputy Clerk




                                         -5-
