                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 22, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 JAMES PRESTON RAY, SR.,

              Petitioner-Appellant,                      No. 08-7089
 v.                                                      (E.D Okla.)
 DAVID PARKER, Warden,                          (D.C. No. CV-05-270-RAW)

              Respondent-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      James Preston Ray was convicted of manufacturing methamphetamine after

prior convictions of two or more felonies, and is serving a life sentence in an

Oklahoma prison. Proceeding pro se, 1 Ray seeks a certificate of appealability

(COA) to challenge the district court’s denial of habeas corpus relief under 28

U.S.C. § 2254.

      *
         This order is not binding precedent except under the doctrines of law of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 cause is therefore ordered submitted without oral argument.
      1
         Because Ray proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
      Ray presents two grounds for a COA: (1) he was improperly bound over for

trial because the bind-over order did not include the second page of the

Information, which covered Ray’s prior convictions; and (2) the evidence at trial

was insufficient to support his conviction. After carefully reviewing the record,

we determine Ray is not entitled to a COA.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                  I. Background

      Ray was tried for manufacturing methamphetamine. The charges stemmed

from a parole officer’s visit to Ray’s apartment, when Ray was present, and the

officer’s subsequent discovery of an operating methamphetamine lab in the

apartment. An Oklahoma state jury convicted Ray of manufacturing

methamphetamine after prior convictions for two or more felonies. Ray is

currently serving a life sentence. The Oklahoma Court of Criminal Appeals

(OCCA) affirmed Ray’s conviction on direct appeal. Ray then sought federal

court review of his conviction under 28 U.S.C. § 2254, and the court denied his

petition. Ray now seeks a COA for two claims.

                                  II. Discussion

      To obtain a COA, Ray must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). This standard is satisfied by demonstrating that “reasonable

jurists could debate whether . . . the petition should have been resolved in a

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different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail.” Miller-El, 537

U.S. at 338.

      A. Information and Bind-over Order

      Ray first claims he was not properly bound over for trial. He claims the

trial court’s order did not include a portion of the information that alleged Ray’s

prior convictions.

      The OCCA rejected the claim on direct appeal:

             Ray and two of his co-defendants waived preliminary hearing
      and filed a joint stipulation of facts, in lieu of a preliminary hearing,
      which included the following stipulation: “that the State could
      introduce sufficient evidence regarding the second page of the
      information filed herein regarding the prior convictions of each
      Defendant.” [The court] issued an order noting that the parties had
      agreed to submit the case, for preliminary hearing purposes, on a
      written stipulation and that “[t]he court has received and considered
      the stipulation ... and now makes this decision.” The court found
      that the State had sufficiently established probable cause that Ray
      had committed the crime of manufacturing methamphetamine, and
      then bound him over for arraignment and trial “on the charge of
      Manufacture of Controlled Dangerous Substance-Methamphetamine.”
      Thus the bind over order failed to mention the prior offenses with
      which Ray had been charged.

             Ray was formally arraigned on January 22, 2003,
      acknowledged receipt of the Information, waived formal reading of
      it, and entered a plea of not guilty. He raised no objection to the

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      Information or the prior offenses charged therein until July 23, 2003,
      just before the beginning of voir dire in his trial. . . . [T]he trial court
      . . . found that Ray had stipulated to his prior offenses, for the
      purpose of waiving preliminary hearing, that [the Judge] explicitly
      accepted Ray’s stipulations, and that Judge[’s] failure to explicitly
      reference the prior offenses was merely a scrivener’s error, and not
      fatal to the State’s ability to proceed on the second page. The court
      further ruled that Ray waived any defect in this regard, by failing to
      object at the time of his arraignment. . . .

             Furthermore, Ray waived any challenge to the failure of the
      bind over order to specifically state that he was bound over on his
      prior convictions, by failing to object at the time of arraignment.
      [footnote citing Hambrick v. State, 535 P.2d 703, 705 (Okla. Crim.
      App. 1975); and Berry v. State, 834 P.2d 1002, 1004–05 (Okla. Crim.
      App. 1995.)] There was never any uncertainty that the State intended
      to hold Ray accountable for his prior offenses, the omission in the bind
      over order notwithstanding. Ray was in no way prejudiced or confused
      by this omission; and the trial court’s ruling in this regard was not
      clearly erroneous or improper. Hence Ray’s challenge is rejected.

R., Doc. 7, Ex. 3 at 7–9.

      The OCCA based its denial of Ray’s claim on state law governing the

adequacy of bind-over orders. As the district court correctly noted, on habeas

review we have no authority to review a state court interpretation or application

of its own law. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) ( “[I]t is not the

province of [] federal habeas court[s] to reexamine state-court determinations on

state-law questions.”); see also Gonzales v. Tafoya, 515 F.3d 1097, 1126–27 (10th

Cir. 2008) (“In conducting our inquiry, we defer to the state court’s

interpretations of state law.”). Accordingly, we will not upset the OCCA’s

interpretation of the state law governing bind-over orders.



                                           -4-
      Even if we construe Ray’s claim broadly as a federal due process violation,

as opposed to a challenge of the OCCA’s determination of state law, his claim

fails. While “[a] charging instrument may violate the Sixth Amendment by

failing to provide a defendant with adequate notice of the nature and cause of the

accusations filed against him,” Johnson v. Gibson, 169 F.3d 1239, 1252 (10th

Cir. 1999), Ray fails to challenge the charging instrument. Instead, Ray

challenges the bind-over order, not the Information.

      Upon a careful review of the record, we agree with the district court’s

finding that Ray was fully on notice of the charges against him, including the

prior convictions listed in the Information. Finally, we see no prejudice from the

alleged omissions in the bind-over order.

      We decline to grant him a COA on this issue.

      B. Sufficiency of the Evidence

      Ray also challenges the sufficiency of the evidence. When evaluating the

sufficiency of the evidence, “the relevant question is 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 the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). If facts in the record support

conflicting inferences, we must presume “that the trier of fact resolved any such

conflicts in favor of the prosecution.” Id. at 326.




                                         -5-
      Because Ray presented his sufficiency of the evidence challenge under 28

U.S.C. § 2254(d), we focus on whether the state court’s result contravenes or

unreasonably applies clearly established federal law, not on the extent of the

reasoning followed by the state court in reaching its decision. See Aycox v. Lytle,

196 F.3d 1174, 1177–78 (10th Cir. 1999) (“[W]e owe deference to the state

court’s result, even if its reasoning is not expressly stated. . . . [W]e cannot grant

relief unless the state court’s result is legally or factually unreasonable.”).

      The OCCA’s summary opinion rejected Ray’s claim:

      Regarding Proposition V [challenging sufficiency of the evidence], the
      evidence presented at trial was more than sufficient to convict Ray of
      knowingly participating in the manufacture of methamphetamine at his
      residence. [footnote citing Jackson, 443 U.S. 307 at 319–20; Spuehler v. State,
      709 P.2d 202, 203–04 (Okla. Crim. App. 1985)].

R., Doc. 7, Ex. 3 at 9.

      After carefully reviewing the record, we conclude the OCCA reasonably

applied the correct standard of review, Jackson, 443 U.S. at 319–20, and the

record supports the OCCA’s decision. As the district court concluded, the record

shows that a meth lab operated out of Ray’s apartment, the lab was functional

while Ray was present, and Ray tried to prevent his parole officers from

discovering the lab during the residential visit.

      Thus, Ray is not entitled to a COA on this second ground.




                                           -6-
                              III. Conclusion

     For the reasons set forth above, we DENY Ray’s petition for a COA and

GRANT his motion to appeal in forma pauperis.

                                   Entered for the Court,

                                   Timothy M. Tymkovich,
                                   Circuit Judge




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