                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         April 29, 2008
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                     TENTH CIRCUIT


 ROBERT LEE TAYLOR,

           Petitioner - Appellant,
                                                              No. 06-6262
 vs.                                                   (D.C. No. 5:05-CV-01132-F)
                                                              (W.D. Okla.)
 DAVID PARKER, Warden,*

           Respondent - Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY**


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


       Petitioner-Appellant Robert Lee Taylor, a state prisoner acting pro se, appeals

from the district court’s denial of his petition for habeas corpus. Because the district

court denied Mr. Taylor’s request for a certificate of appealability (“COA”), he seeks one

from this court. Additionally, Mr. Taylor moves for leave to proceed in forma pauperis

(“IFP”). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). Reviewing Mr.

       *
             Pursuant to Fed. R. App. P. 43(c)(2), we substitute the current Warden,
David Parker (in the stead of the former Warden, Eric Franklin) as party respondent.
       **
               This Order and Judgment is not binding precedent, except under the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 case
is therefore ordered submitted without oral argument.
Taylor’s filings liberally,1 we hold that no reasonable jurist could conclude that the

district court’s dismissal was incorrect. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, we decline to issue a COA and dismiss his appeal.

                                        I. Background

       Mr. Taylor was convicted by an Oklahoma trial court of committing lewd acts with

a minor under sixteen and sentenced to thirty-five years in prison. The Oklahoma Court

of Criminal Appeals (“OCCA”) affirmed his conviction and sentence.

       Mr. Taylor filed his habeas petition on September 27, 2005 reasserting the same

six issues he raised on his direct appeal: that he was denied a fair trial by (1) the trial

court’s refusal to instruct the jury on voluntary intoxication, (2) the prosecutor’s

misconduct, (3) the trial court’s failure to instruct on his eligibility for parole, (4) the

prosecutor’s improper questioning regarding his parole status, (5) the trial court’s

admission of other crimes evidence, and (6) the excessiveness of his sentence.

       The district court assigned the matter to a magistrate judge who made findings and

recommended that Mr. Taylor’s habeas petition be dismissed. After reviewing Mr.

Taylor’s objections, the district court adopted the magistrate judge’s findings and

recommendation and dismissed the petition. The district court also refused to grant Mr.

Taylor a COA.



       1
           Because Mr. Taylor is proceeding pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S. Bureau of
Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

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                                      II. Discussion

                                 A. Standard of Review

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our

review of Mr. Taylor’s claims. A COA is a jurisdictional pre-requisite to our review.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” Fleming v. Evans,

481 F.3d 1249, 1254 (10th Cir. 2007) (quoting 28 U.S.C. § 2253(c)(2)). Thus, a

petitioner must 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.” Id.

(quoting Slack, 529 U.S. at 484).

       In making this determination, we incorporate the AEDPA’s deferential treatment

of state court decisions into our decision on whether to grant a COA, Dockins v. Hines,

374 F.3d 935, 938 (10th Cir. 2004), and “look to the District Court’s application of the

AEDPA to the petitioner’s constitutional claims and ask whether that resolution was

debatable among jurists of reason.” Miller-El, 537 U.S. at 336. We undertake a

“preliminary, though not definitive, consideration” of the legal framework applicable to

each claim. Id. at 338. To be entitled to a COA, Mr. Taylor need not establish that he

will succeed on appeal, but he must prove more than “the absence of frivolity or the

existence of mere good faith.” Id. (internal quotation marks omitted).

       Applying these rules, we conclude that the district court’s resolution of Mr.

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Taylor’s claims is not reasonably debatable and those claims are not deserving of further

proceedings.

                                         B. Merits

           1. Refusal to Instruct on the Defense of Voluntary Intoxication

       Mr. Taylor first claims the state trial court improperly refused to instruct the jury

on his defense of voluntary intoxication. However, he fails to cite Supreme Court

precedent establishing a constitutional mandate for an intoxication instruction, and, in

fact, Supreme Court precedent suggests that no such instruction is required. See

generally Montana v. Egelhoff, 518 U.S. 37, 39-40 (1996) (Montana statute prohibiting

consideration of voluntary intoxication in determining mental state as an element of a

crime does not violate Due Process).

       We therefore review the alleged error in the jury instructions in the context of the

entire trial and only for the denial of fundamental fairness and due process. Spears v.

Mullin, 343 F.3d 1215, 1243 (10th Cir. 2003) (citing Henderson v. Kibbe, 431 U.S. 145,

156-57 (1977) (pre-AEDPA). “[T]he burden on a petitioner attacking a state court

judgment based on a refusal to give a requested jury instruction is especially great

because ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of law.’” Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999) (quoting

Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.1995)).

       Here, reasonable jurists would not find the district court’s assessment of Mr.

Taylor’s claim debatable or wrong. To determine whether the refusal to instruct on

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voluntary intoxication rendered Mr. Taylor’s trial fundamentally unfair, we examine

relevant Oklahoma law. “Voluntary intoxication is a defense only to specific intent

crimes and not to general intent crimes.” Fairchild v. State, 998 P.2d 611, 618 (Okla.

Crim. App. 1999). After analyzing the statutory language, the OCCA in this case

determined that the crime of which Mr. Taylor was convicted is a general intent crime.

The magistrate judge noted that the OCCA’s decision of Oklahoma law is binding on a

federal court. That conclusion is not subject to reasonable dispute. See Chapman v.

LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002) (“On habeas review, . . . the [state]

courts’ interpretation of the state . . . statute is a matter of state law binding on this

court.”).

       Because Mr. Taylor was charged with a general intent crime, voluntary

intoxication was not a viable defense. Therefore, his trial could not have been rendered

constitutionally deficient by the state trial court’s refusal to instruct on voluntary

intoxication. Mr. Taylor is not entitled to a COA on this issue.

                                2. Prosecutorial Misconduct

       Mr. Taylor next argues that he was denied a fair trial when the prosecutor

allegedly attacked defense counsel in closing argument and improperly appealed to the

jury’s sympathy for the victim. The OCCA rejected these arguments, determining that:

(1) the prosecutor’s comments did not personally attack defense counsel, but were instead

based on the evidence and, while the tenor of some of the comments referring to defense

counsel was perhaps ill-advised, no relief was warranted; and (2) any comments

                                                5
regarding the victim were proper as they were based on the evidence and did not seek to

elicit sympathy.

       For prosecutorial misconduct to rise to the level of entitling petitioner to federal

habeas relief, it must either have violated a specific constitutional right or “so infected the

trial with unfairness as to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “This determination may be made

only after considering all of the surrounding circumstances, including the strength of the

state’s case.” Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005), cert. denied, 126

S. Ct. 2356 (2006). Here, the magistrate judge reviewed the claim on the merits and,

giving due deference to the prior state court decision under § 2254(d), concluded that

even assuming the prosecutor’s comments regarding defense counsel were inappropriate,

the comments did not affect the outcome of the trial since the reference was brief, and the

evidence overwhelmingly established Mr. Taylor’s guilt. Additionally, the magistrate

judge fully reviewed the OCCA’s determination that the prosecutor’s comments allegedly

eliciting sympathy for the victim did not affect Mr. Taylor’s right to a fair trial. The

magistrate judge concluded that Mr. Taylor had failed to establish that the comments

infected his trial with the level of unfairness necessary to obtain habeas relief.

       Our own review of Mr. Taylor’s submissions, the magistrate judge’s report and

recommendation, the district court’s disposition, and the entire appellate record, reveals

that he raises no issue meeting our standards for granting a COA. The prosecutor’s

comments did not so infect Mr. Taylor’s trial with unfairness as to render the resulting

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conviction a denial of due process. We do not believe that reasonable jurists “could

debate whether (or, for that matter, agree that)” Mr. Taylor’s claims “should have been

resolved in a different manner or that [they] were adequate to deserve encouragement to

proceed further.” Slack, 529 U.S. at 484 (internal quotation marks omitted).

Consequently, we decline to grant Mr. Taylor a COA on this issue.

            3. Refusal to Instruct on Oklahoma’s Eighty-five Percent Rule

       Mr. Taylor argues that he is entitled to habeas relief because the state court did not

instruct the jury that Oklahoma law requires him to serve eighty-five percent of any

sentence imposed before being eligible for parole (the “eighty-five percent Rule”). The

magistrate judge recommended that his claim be denied because the OCCA’s

determination that the trial court did not err was not contrary to or an unreasonable

application of established Supreme Court precedent and did not render Mr. Taylor’s trial

fundamentally unfair.

       Notably, the Supreme Court has not held that the Constitution requires the jury to

be informed of a defendant’s parole eligibility in a non-capital case. Indeed, the Court

has only held that the Constitution requires such information to be provided to a jury in a

limited set of capital cases. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994)

(capital case, holding that the jury must be informed of parole eligibility when: (1) the

defendant, if sentenced to life, will never become legally eligible for parole; and (2) the

prosecution argues that the defendant presents a future danger). We are convinced that

the refusal to instruct on the eighty-five percent Rule did not render Mr. Taylor’s trial so

                                              7
fundamentally unfair as to cause a denial of a fair trial in a constitutional sense. See, e.g.,

Jones v. Mullin, 175 Fed. App’x 967, 968 (10th Cir. 2006) (unpublished) (in non-capital

case, rejecting petitioner’s contention that “he is entitled to re-sentencing because due

process demands that a jury be informed that Oklahoma’s parole eligibility requirements

effectively require him to serve such a large portion of his sentence that there is no

possibility of parole during his natural life”).

       We therefore conclude that Mr. Taylor does not make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He is not entitled to a COA

on this claim.

                                   4. Evidentiary Rulings

       Mr. Taylor contends that he was prejudiced when the prosecutor mentioned his

probationary status to the jury and when evidence of other crimes was introduced to the

jury. The OCCA rejected both contentions holding that, if any error occurred, Mr. Taylor

failed to establish that he was prejudiced since the state court sustained contemporaneous

objections which cured any error.

       On collateral review, we give considerable deference to state court evidentiary

rulings and “may not provide habeas relief . . . unless [those rulings] rendered the trial so

fundamentally unfair that a denial of constitutional rights results.” Duckett v. Mullin, 306

F.3d 982, 999 (10th Cir. 2002). The magistrate court determined that the OCCA decision

on these claims was neither an unreasonable determination of the facts nor an

unreasonable application of Supreme Court law. We agree. The state court’s findings

                                               8
were not so arbitrary and capricious as to constitute an independent due process violation.

Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002) (citing Lewis v. Jeffers, 497 U.S.

764, 780 (1990)). Because Mr. Taylor presents no evidence that the admission of this

evidence rendered his trial fundamentally unfair, he is not entitled to a COA on these

claims.

                               5. Excessiveness of the Sentence

       Finally, Mr. Taylor argues that his thirty-five year sentence was excessive. “We

afford wide discretion to the state trial court’s sentencing decision, and challenges to the

decision are not generally constitutionally cognizable, unless it is shown that the sentence

imposed is outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222

F.3d 1245, 1258 (10th Cir. 2000). Indeed, our review generally ends “once we determine

the sentence is within the limitation set by statute.” Id.

       As the magistrate judge noted, because Mr. Taylor had been previously convicted

of more than two felonies he was subject to a minimum of twenty years in prison. See

OKLA. STAT. tit. 21, § 51.1.B. The crime of a lewd act with a child under sixteen is a

felony which carries a presumptive sentencing range of one to twenty years. See OKLA.

STAT. tit. 21, § 1123. The jury suggested, and the state court adopted, a thirty-five year

sentence. This sentence is within the limitations of Oklahoma law. We, therefore,

discern no basis for relief.

                                       II. Conclusion

       Accordingly, because Mr. Taylor has failed to make a substantial showing of the

                                              9
denial of a constitutional right, we DENY his petition for a COA and DISMISS the

appeal. Mr. Taylor’s motion to proceed IFP is GRANTED.



                                       Entered for the Court,


                                       Jerome A. Holmes
                                       Circuit Judge




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