                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                May 27, 2015
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 MICHAEL ERICK STACHMUS,

          Petitioner - Appellant,

 v.                                                     No. 14-7092
                                            (D.C. No. 6:11-CV-00027-JHP-KEW)
 JAMES RUDEK, Warden,                                    (E.D. Okla.)

          Respondent - Appellee.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Petitioner-Appellant Michael Stachmus seeks to appeal from the district

court’s judgment 1 rejecting his challenge to his state court conviction pursuant to

28 U.S.C. § 2254. See Stachmus v. Rudek, No. 11–CV–27–JHP–KEW, 2014 WL

4966157 (E.D. Okla. Sept. 30, 2014) (order). The parties are familiar with the

facts and we need not restate them here. Mr. Stachmus was convicted of first-

degree murder of his spouse and sentenced to life imprisonment without the



      1
          The district court’s judgment incorrectly recites that Mr. Stachmus was
sentenced to death. Aplt. App. 215. Additionally, the district court did not
address whether a certificate of appealability (COA) should be issued or denied as
required by Rule 11(a) of the Rules Governing Section 2254 Cases. Counsel has
moved for a COA in the opening brief.
possibility of parole. Okla. Stat. tit. 21, § 701.7(A). The Oklahoma Court of

Criminal Appeals (OCCA) affirmed the judgment and sentence on direct appeal.

Stachmus v. State, No. F-2008-413, (May 8, 2009), Aplt. App. 69–78. Mr.

Stachmus sought post-conviction relief; the state district court’s denial was

affirmed. Stachmus v. State, No. PC 2010-1006 (Jan. 19, 2011), Aplt. App.

90–92. On appeal, he challenges the OCCA’s rejection of his (1) sufficiency of

the evidence claim, (2) Confrontation Clause and due process claim related to

admission of a hearsay statement by the victim’s brother, and (3) prosecutorial

misconduct claim, as contrary to, or an unreasonable application of, Supreme

Court precedent, or an unreasonable application of the facts in light of the

evidence. 28 U.S.C. § 2254(d).

      For this court to grant a COA, Mr. Stachmus must make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such 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.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

      Because the OCCA decided his claims on the merits, Mr. Stachmus must

demonstrate that its resolution either “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented” or was

“contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1)–(2). Under the “contrary to” clause, a federal court may

grant the writ “if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause, a

federal court may grant the writ only if “the state court's application of clearly

established federal law was objectively unreasonable.” Id. at 409. We have

examined the OCCA’s resolution of the federal claims, and, like the district court,

we conclude that it is consistent with federal law and based on a reasonable

determination of the facts.

A.    Sufficiency of the Evidence

      The OCCA rejected Mr. Stachmus’s sufficiency of the evidence challenge.

Aplt. App. 76–77. Mr. Stachmus takes issue with the prosecutor’s theory that Mr.

Stachmus attacked his spouse from behind, pressed her onto a deck, and then held

her throat on the edge of their hot tub until she stopped breathing. Aplt. Br. at 26.

He argues that such a struggle would have resulted in (1) greater disruption of the

scene, (2) blood, and (3) injuries to himself. He also faults the medical

examiner’s testimony (and the OCCA’s reliance upon it), arguing that it was not

based solely on the autopsy, but rather was influenced by the police investigation.

He further contends that the OCCA’s resolution of his sufficiency of the evidence

claim is contrary to the Supreme Court’s decision in Jackson v. Virginia, 443 U.S.

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307 (1979), because the OCCA concluded that evidence of a third-party

perpetrator was unlikely, and that circumstantial evidence in the form of extra-

marital activities and their disclosure were “relevant indicators” suggesting intent.

       The legal standard for this claim 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.” Jackson,

443 U.S. at 319. Though Mr. Stachmus argues that the OCCA relied upon

authority that predated Jackson and did not conduct an elements analysis, what

matters is that the trial evidence support the result reached. Williams v.

Trammell, 782 F.3d 1184, 1197 (10th Cir. 2015). Having reviewed the record

including the trial exhibits, we agree with the district court that it certainly did.

Stachmus, 2014 WL 4966157, at *4–6 (magistrate judge’s analysis adopted by

district court).

       Essentially, Mr. Stachmus argues that more direct evidence was required to

support the conviction. But that approach is inconsistent with the standards

developed to review sufficiency of the evidence claims, particularly on collateral

review. Circumstantial evidence may support a criminal conviction, as long as

the proof is beyond a reasonable doubt. Desert Palace, Inc. v. Costa, 539 U.S.

90, 100 (2003). Further, conflicts in the evidence 2 must be resolved in favor of

       2
        The medical examiner testified the manner of death was homicide with
the cause of death as “asphyxia due to compression of the neck and/or with
drowning.” IV Tr. 93; 1 R.S. State’s Ex. 37. There were two separate incidents

                                          -4-
the prosecution, and there is no requirement that the prosecution negate every

hypothesis except guilt. Jackson, 443 U.S. at 326.

B.     Confrontation Clause

       Over objection, the victim’s brother testified that the victim told him that if

her husband (Mr. Stachmus) “was having an affair, cheating on her, or sending

flowers or even talking to another woman, that she would leave him.” II Tr.

25–26. Mr. Stachmus argues that this “was the centerpiece of the State’s case for

motive.” Aplt. Br. 40. He further argues that this hearsay evidence was

testimonial in nature and its admission was contrary to the Confrontation Clause,

see Crawford v. Washington, 541 U.S. 36 (2004), due process, and Oklahoma

law.

       The OCCA held that the statement was admissible under state law as

exhibiting the victim’s state of mind as it pertained to her husband’s potential

infidelity. Aplt. 71–72. Of course, a federal habeas court does not exist to

correct state law errors absent a showing that the error rendered the trial

fundamentally unfair. Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002).

The district court’s conclusion that the remark was non-testimonial and fell within

a hearsay exception under state law is not reasonably debatable. And as noted by



of blunt force trauma to the head and those injuries could have contributed to the
victim’s death. IV Tr. at 93, 108. The suggestion that death was accidental or
not the result of a homicide seems unlikely on this record. See Aplt. Br. at 25,
33.

                                         -5-
the OCCA, abundant evidence in the record supported the State’s theory that the

victim was aware of Mr. Stachmus’s extramarital interests which might have

furnished a motive. Aplt. App. 73.

C.    Prosecutorial Misconduct

      The OCCA declined to find prosecutorial misconduct and concluded that

the trial court’s denial of a mistrial was within its discretion. Aplt. App. 73–76.

The district court’s conclusion that Mr. Stachmus could not demonstrate that the

actions of the prosecutor rendered his trial fundamentally unfair, Stachmus, 2014

WL 4966157, at *8–15, is not reasonably debatable particularly given the facts of

the case. Mr. Stachmus’s counsel frequently objected, often with success. We

note that claims of due process violations based upon prosecutorial misconduct

must be examined based upon the entire proceedings, and it is simply not logical

to think that the give and take of the trial process (much of what this is) resulted

in the jury abandoning its responsibility to render a verdict based upon the

evidence. 3 See Donnelly v. DeChristoforo, 416 U.S. 637, 643–44 (1974).




      3
         The OCCA rejected Mr. Stachmus’s contention that the prosecutor
essentially shifted the burden of proof to Mr. Stachmus in his closing argument
and the claim of cumulative error. Aplt. App. 76–77. This is not contrary to or
an unreasonable application of federal law, 28 U.S.C. § 2254(d), thus a different
standard of review would not be warranted. Aplt. Br. 56.

                                         -6-
We DENY a COA and DISMISS the appeal.

                          Entered for the Court


                          Paul J. Kelly, Jr.
                          Circuit Judge




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