                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               NOV 3 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 DAMION JOHNSON,

       Petitioner - Appellant,
                                                         No. 04-5050
 v.                                               (D.C. No. CV-01-154-C (J))
                                                         (N.D. Okla.)
 BRET FATKIN, Warden,

       Respondent - Appellee.


                                      ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Petitioner-appellant Damion Johnson appeals the district court’s decision

denying him habeas relief, see 28 U.S.C. § 2254, from his Oklahoma convictions

for first degree burglary and shooting with intent to kill, all after former

conviction of a felony. The trial evidence indicated that Johnson entered a home

uninvited and shot a man who had previously objected to the way Johnson had

been treating Johnson’s girlfriend. Johnson was sentenced to fifty- and

seventy-year prison terms to run consecutively.

      On appeal, Johnson asserts four grounds for habeas relief: 1) an

eight-year-old witness’s trial testimony identifying Johnson as the shooter was

tainted by an overly suggestive pretrial identification, depriving Johnson of due
process; 2) there was insufficient evidence to support either conviction; 3) the

prosecutors made numerous improper remarks during trial; and 4) defense counsel

was ineffective in failing to request the trial court give the jury an alibi

instruction. 1 The district court denied habeas relief and a certificate of

appealability (COA).

      A habeas petitioner must obtain a COA before proceeding on appeal. See

28 U.S.C. § 2253(c)(1). To be entitled to a COA, Johnson must make a

“substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To

make this showing, Johnson must establish that “reasonable jurists could debate

whether (or for that matter, agree that) the petition should have been resolved [by

the district court] in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

483-84 (2000) (quotations omitted).

      Johnson has failed to make that showing. As to Johnson’s first, third and

fourth grounds for relief, we DENY COA for substantially the same reasons the

district court denied habeas relief.




      1
             In the district court, Johnson also argued that the trial court erred in
not sua sponte instructing the jury on his alibi defense. Johnson, however, does
not specifically reassert that claim now on appeal. It would, in any event, not
warrant a certificate of appealability.

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      As to his second ground for relief, challenging the evidence’s sufficiency to

support both convictions, the district court deemed Johnson to have failed to raise

that claim on direct appeal and, thus, to have now procedurally defaulted that

claim. We disagree, concluding instead that Johnson did adequately raise that

issue on direct appeal. Nevertheless, after having carefully reviewed the trial

record, we conclude that there was clearly sufficient evidence to support both

Johnson’s convictions.

      For all of these reasons, then, we DENY Johnson a certificate of

appealability and DISMISS this appeal.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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