                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           APR 28 1999

                                  TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 BOBBY E. LUCKY,

          Petitioner-Appellant,                         Nos. 98-6252
                                                            98-6306
 v.                                                         98-6394
                                                  (D.C. No. CIV-97-633-L)
 RON WARD,                                            (W. Dist. Okla.)

          Respondent-Appellee.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).

      In this 28 U.S.C. §2254 action, Bobby Eugene Lucky appeals the denial of

his petition for a writ of habeas corpus, motion to file in forma pauperis, and


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The 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.
motion for a certificate of appealability. Mr. Lucky’s petition, as liberally

construed, asserts the following grounds for relief: (1) the trial court lacked

jurisdiction; (2) the trial court erred in admitting two his prior convictions for

purposes of impeachment and (3) enhancement; (4) the state appellate court erred

in upholding the use of these convictions; and (5) ineffective assistance of trial

and appellate counsel. 1 All of his claims apparently stem from the admittance and

use of two of his former convictions to impeach him and enhance his sentence.

We affirm.

      In May 1992, Mr. Lucky was tried and convicted of Grand Larceny After

Former Conviction of Two or More Felonies. 2 The underlying information

asserted that Mr. Lucky had been previously convicted of seven felonies,

including burglary in the second degree in 1975 and concealing stolen property in

      1
         In his petition on appeal, Mr. Lucky stated he was raising the following
issues on appeal:
        (1) Lack of jurisdiction over the subject mater, (2) Invidious
       Discrimination in the State Court’s [sic] in the use of case
       CRF-75-4195 and CRF-76-1253 as A.F.A.C., (3) Deprived of
       effective assistance of trial and appellate counsel, (4) Deprived of a
       fair trial, (5) Trial and Appellate counsel failed to perform as counsel
       in a similar situation, (6) The Oklahoma County District Court, Court
       of Criminal Appeals had decided an important federal Constitutional
       question that’s in conflict with other federal court’s [sic] of appeal.
Aplt. Br. at 4-5. We construe Mr. Lucky’s petition liberally as he is proceeding
pro se. See Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998).
      2
        At that time, Mr. Lucky was also convicted of Concealing Stolen
Property After Former Conviction of Two or More Felonies. The Oklahoma
Court of Criminal Appeals reversed this conviction on direct appeal.

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1976, Case Nos. CRF-75-4195 and CRF-76-1253, respectively. Two of his other

prior convictions were less than ten years old.

      Because all of Mr. Lucky’s claims stem from the district court’s use of his

1975 and 1976 convictions, we first address that issue. Mr. Lucky asserts that the

court could not use these convictions to enhance his sentence because they were

too old and obtained in violation his constitutional rights. While this claim

appears meritless, we need not decide the issue because even if the court

improperly used these two convictions such an error would be harmless. Mr.

Lucky had been convicted of five other felonies prior to this crime, all of which

could be properly used to enhance his sentence. “Where enhancement could have

been based on other convictions, reliance on an invalid one is harmless.” Webster

v. Estelle, 505 F.2d 926, 931 (5th Cir. 1974); see also Abdulhaseeb v. Hargett,

No. 96-6348, 1997 WL 196689 (10th Cir. Apr. 23, 1997); Beavers v. Alford, 582

F. Supp. 1504, 1506 (W.D. Okla. 1984). Mr. Lucky’s argument that the five

subsequent convictions were tainted by the first two, because those two

convictions could be used to impeach his testimony also fails. That connection

between his prior and subsequent convictions “is too attenuated to amount to

constitutional error.” Carbray v. Champion, 905 F.2d 314, 316 (10th Cir. 1990).

Therefore, neither the state trial court’s use of the 1975 and 1976 convictions to

enhance Mr. Lucky’s sentence, nor the state appellate court’s affirmance, provide


                                         -3-
a basis for habeas relief.

      Mr. Lucky next contends that the trial court erred in allowing the

government to impeach his testimony with the 1975 and 1976 convictions without

balancing prejudice and probativeness as required by section 2609(B) of the

Oklahoma Evidence Code. 3 “We will not grant habeas relief on state court

evidentiary rulings ‘unless they rendered the trial so fundamentally unfair as to

constitute a denial of federal constitutional rights.’” Cummings v. Evans, 161 F.3d

610, 618 (10th Cir. 1998) (quoting Duvall v . Reynolds, 139 F.3d 768, 789 (10th

Cir. 1997)). “Thus, we will not disturb a state court’s admission of evidence of

prior crimes, wrongs or acts unless the probative value of such evidence is so

greatly outweighed by the prejudice flowing from its admission that the admission

denies defendant due process of law.” Hopkinson v. Shillinger, 866 F.2d 1185,

1197 (10th Cir. 1989), overruled on other grounds by Sawyer v. Smith, 497 U.S.

227 (1990). Because Mr. Lucky had five other convictions which could be used

to impeach him, the admission of these two is not significantly prejudicial. Cf.

Linskey v. Hecker, 753 F.2d 199, 201 n.2 (1st Cir. 1985). Therefore, even

assuming the district court failed to balance as required by state statute, that error



      3
         In asserting this claim, Mr. Lucky also cites the Federal Rules of
Evidence. We note that Federal Rules of Evidence only apply to proceedings in
federal court. See F ED . R. E VID . 101. In criminal proceedings in state court, only
the state rules of evidence apply.

                                          -4-
of state law did not impinge on Mr. Lucky’s due process rights. 4

         We now turn to Mr. Lucky’s ineffective assistance of counsel claims.

Under Strickland v. Washington, 466 U.S. 688 (1984), Mr. Lucky must show that

his counsel performed deficiently and that the deficient performance prejudiced

his defense. Id. at 687. Mr. Lucky claims his counsel was ineffective because he

failed to exclude his prior convictions or prevail on appeal. As noted above, even

if the 1975 and 1976 convictions were improperly admitted, they did not “deprive

[Mr. Lucky] of a fair trial,” id., in light of his other convictions.

         Finally, we note that Mr. Lucky has not explained the basis of his subject

matter jurisdiction claim and there appears to be none. We therefore reject that

claim.

         For the aforementioned reasons, we hold Mr. Lucky’s points of appeal



         Mr. Lucky successfully challenged another conviction in the Oklahoma
         4

Court of Criminal Appeals, on similar but distinguishable grounds. He was tried
and convicted of another crime in the early 1990s. At that trial, the prosecution
questioned Mr. Lucky about several of his prior convictions. On appeal in that
case, the Oklahoma Court of Criminal Appeals ordered a new trial because the
trial court failed to consider the state law guidelines for admitting such testimony,
the prosecution failed to properly notify the defense that it intended to use the
convictions to impeach, and failed to offer any specific facts or circumstances to
support those convictions. Mr. Lucky appears to argue that because he
successfully appealed that case, he should also be successful in this one.
       In the instant case, however, Mr. Lucky does not allege the state failed to
follow the proper procedures in admitting his prior convictions, and there is no
evidence the state behaved improperly. Moreover, Mr. Lucky’s trial and appellate
counsel objected to the use of those convictions (it is unclear on what basis), and
the state trial and appellate court rejected those claims as matter of state law.

                                          -5-
either fail to state a claim or are legally frivolous. See 28 U.S.C. § 1915 (e)(2).

We therefore DENY the certificate of appealability, DENY leave to file in forma

pauperis, and DISMISS the appeal.

                                                ENTERED FOR THE COURT


                                                Stephanie K. Seymour
                                                Chief Judge




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