                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 27 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CHARLES EDWARD GARRISON,

           Petitioner-Appellant,
 vs.                                                   No. 00-6159
                                                 (D.C. No. 99-CV-1036-C)
 JAMES L. SAFFLE,                                      (W.D. Okla.)

           Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Petitioner-Appellant Charles Edward Garrison seeks to appeal from the

denial of his habeas petition, 28 U.S.C. § 2254. Mr. Garrison was convicted by a

jury of Unlawful Delivery of Marijuana After Former Conviction of Two or More

Felonies (Counts I and II) and Maintaining a Dwelling House Where Drugs are

Kept After Former Conviction of Two or More Felonies (Count III). R. doc. 1


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         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.
(Judgment and Sentence as attachment). He was sentenced to twenty years

imprisonment and fined $2,500 on each of Counts I and II, and thirty years

imprisonment and $15,000 on Count III. Id. The Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed his convictions on direct appeal, but reduced the

Count III fine to $10,000. Id. (Summary Opinion as attachment).

      In his habeas petition, Mr. Garrison sought relief on the basis that the trial

court (1) failed to properly instruct the jury on the essential elements of Count III,

specifically that the violation of law must have been committed “knowingly and

intentionally;” (2) erroneously permitted the jurors to retain possession of their

notes during an overnight recess; (3) improperly instructed the jury regarding the

applicable fines, thereby requiring that the fines on all counts be vacated or that

he be resentenced; and (4) improperly responded to a jury question during their

deliberations. The district court, adopting the report and recommendation of the

magistrate judge, rejected each of Mr. Garrison’s four bases for relief. R. doc.

15, 16.

      Although the jury instruction did omit the terms “knowingly and

intentionally,” any error was harmless given the sufficiency of the evidence

against Mr. Garrison, including evidence of two instances where he sold

controlled dangerous substances from his residence and various drug items found

during a search of the residence. See Brecht v. Abrahamson, 507 U.S. 619, 637-


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38 (1993); Scoggin v. Kaiser, 186 F.3d 1203, 1207 (10th Cir. 1999). As to claims

(2) and (4), they involve alleged violations of state law, not cognizable in federal

habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

      As to his claim that the fines on all counts should have been vacated or

modified because of the trial court’s erroneous instructions, we note that on direct

appeal Mr. Garrison conceded that he could be fined up to $10,000 on each count

based upon Okla. Stat. Ann. tit. 21, § 64 (1983 & Supp. 1997) and Fite v. State,

873 P.2d 293, 294-95 (Okla. Crim. App. 1993), wherein a court may impose a

fine in lieu of a jury. R. doc. 10, Att. A at 17-18. The OCCA rejected the claim

that the trial court misinstructed the jury on the fine for Counts I and II by

instructing that the maximum fine was $20,000 on Counts I and II, rather than

$10,000 for each count. Given Mr. Garrison’s conviction on both counts and

$2,500 fines for each, we fail to see how this could be error, let alone

constitutional error. The OCCA modified the fine on Count III to conform to the

conceded statutory maximum of $10,000, and rejected the argument that the fines

on all counts must be modified or vacated because the court misinstructed the jury

that the maximum fine was $100,000. This represents no more than an appellate

court tailoring relief–Mr. Garrison has pointed to no authority suggesting that an

appellate court is required to grant broader relief than necessary to correct an

erroneous jury instruction. To the extent that Mr. Garrison challenges the Fite


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procedure on due process grounds insofar as Count III is concerned, such a claim

is unexhausted, would be procedurally barred under Okla. Stat. tit. 22, § 1086,

and we would not reach it as no cause or prejudice has been suggested, nor is

their a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991).

      Mr. Garrison’s request for a certificate of appealability is DENIED, Slack

v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000), his petition is DISMISSED, and his

motion to proceed in forma pauperis is DENIED. The “Request to Enter

Amended Opening Brief” is granted.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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