                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           May 30, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 A M R IT M O H A N TH O MPSO N ,

                 Petitioner-A ppellant,                  No. 05-5196
          v.                                            (N .D. of Okla.)
 STEVEN BECK, W arden,                           (D.C. No. CV -02-628-CV E)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Petitioner-Appellant Amrit Thompson, a state prisoner appearing pro se,

seeks a certificate of appealability (COA) to appeal the denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. W e agree with the district

court that the COA should not issue because Thompson has not made a substantial




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order 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.
show ing of the denial of a constitutional right. Accordingly, we DENY the COA

and DISM ISS the appeal.

                                   I. Background

      In 1999 Thompson was convicted by an Oklahoma jury for first degree

murder with intent to kill. The basis for this conviction was a shooting earlier

that year in which Thompson and others shot from one moving car at three

victims in another moving car. One of the three w as killed; the other two were

wounded but survived.

      Thompson appealed his conviction to the Oklahoma Court of Criminal

Appeals (OCCA) but did not seek post-conviction relief through the Oklahoma

state courts. He subsequently sought a writ of habeas corpus pursuant to 28

U.S.C. § 2254 from the United States District Court for the Northern District of

Oklahoma. In his federal petition, Thompson claimed his constitutional rights

had been violated based on (1) the trial court’s failure to instruct the jury on

second degree murder and manslaughter, (2) the trial court’s refusal to give an

accomplice instruction, and (3) the insufficiency of the evidence. The petition

was denied in a well-reasoned order by the district court. Thompson now raises

these same issues on appeal to this court.

                                    II. Analysis

      Before Thompson may proceed with his appeal, he must obtain a COA. 28

U.S.C. § 2253(c)(1). W e will issue a CO A “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). W here a district court “has rejected the constitutional claims on the

merits,” an applicant meets this standard by “demonstrat[ing] that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

Slack v. M cDaniel, 529 U.S. 473, 484 (2000)). In general, the COA analysis

“requires an overview of the claims in the habeas petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.” M iller-El, 537 U.S. at 336.

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

Thompson’s claims debatable or wrong. He therefore has failed to make a

sufficient showing that he is entitled to a COA on any of his claims.

      A. Refusal to Instruct Jury on Lesser Included Offenses

      Thompson first argues that his trial violated due process because the court

refused to instruct the jury on two lesser included offenses (second degree murder

and manslaughter). The district court rejected this argument, concluding (1) that

the refusal was not so fundamentally unfair as to deprive him of due process, (2)

that, in any event, jury instruction claims were not reviewable in habeas

proceedings, and (3) that the OCCA decision was not contrary to clearly

established federal law. W e agree.




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         The district court correctly observed that “[a]s a general rule, errors in jury

instructions in a state criminal trial are not reviewable in federal habeas corpus

proceedings, unless they are so fundamentally unfair as to deprive petitioner of a

fair trial and to due process of law.” Patton v. M ullin, 425 F.3d 788, 807 (10th

Cir. 2005) (quoting Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997)).

In applying this standard, we typically consider whether the denied instruction

was warranted under the facts of the case. See, e.g., Tyler v. Nelson, 163 F.3d

1222, 1227 (10th Cir. 1999) (turning to state law to determine whether defendant

was entitled to requested instruction); Lujan v. Tansy, 2 F.3d 1031, 1035–36 (10th

Cir. 1993) (holding that refusal to give instruction did not violate due process

where the record contained no evidence that would support the instruction).

Some of our cases have even recognized “a rule of ‘automatic non-reviewability’

for claims based on a state court’s failure, in a non-capital case, to give a lesser

included offense instruction.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.

2004).

         Under this authority, reasonable jurists would not find the district court’s

reasoning debatable or wrong. Here, the OCCA made clear that “[s]econd degree

depraved mind murder and manslaughter are lesser included offenses of first

degree murder” and that “[t]he trial court should have given both instructions if

they were supported by the evidence.” Doc. 5, Ex. C, Pg. 3. However, the OCCA

further held that as a matter of Oklahoma law, under these facts, instructions for

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the lesser included offenses need not be given. Our appellate review is to assess

whether the OCCA’s decision was “contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). Because reasonable jurists would not differ on

this claim , the district court did not err by failing to issue a COA.

      B. Failure to Give Accom plice Instruction

      Thompson’s second claim is a variation of his first. He argues the trial

court’s failure to give an accomplice instruction also violated due process.

Although the OCCA ruled that “[t]he jury should have been instructed that [the

witness] was an accomplice as a matter of law,” the court further concluded that

any error was harmless. D oc. 5, Ex. C, Pg. 7. After reviewing the record, we

agree w ith the error w as harmless. In light of the foregoing authorities, we

cannot say that the failure to instruct the jury on this issue made Thompson’s trial

fundamentally unfair or that the OCCA misapplied Supreme Court precedent.

Thus, Thompson is not entitled to a COA on this claim either.

      C. Sufficiency of the Evidence

      Thompson finally claims that the evidence was insufficient to convict,

specifically that the state had not established his intent to kill any of the three

victims. The Supreme Court has stated that a sufficiency challenge requires us to

ask “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

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the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). As the district court and OCCA pointed out, the record amply established

Thompson’s guilt under such a deferential standard. A COA is not proper on this

claim either.

                                III. Conclusion

      Accordingly, we DEN Y Thompson’s application for a CO A and DISM ISS

this appeal. Thompson’s motion to proceed in forma pauperis is GRANTED.



                                             Entered for the Court

                                             Timothy M . Tymkovich
                                             Circuit Judge




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