                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 19 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GARY R. THOMPSON,

                Petitioner-Appellant,

    v.                                             Nos. 00-6114 & 00-6120
                                                   (D.C. No. CIV-97-286-L)
    RON WARD,                                            (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



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

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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are

therefore ordered submitted without oral argument. 1




*
      This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
      Appellant and his counsel both filed separate timely notices of appeal; the
cases were consolidated on the court’s own motion.
      Gary R. Thompson appeals from the district court’s denial of habeas corpus

relief pursuant to 28 U.S.C. § 2254. We have jurisdiction over this appeal by

virtue of 28 U.S.C. § 1291. Because appellant filed his habeas application in

February of 1997, it is subject to the provisions of the Antiterrorism and Effective

Death Penalty Act (AEDPA).     See Lindh v. Murphy , 521 U.S. 320, 336 (1997).

This court previously granted appellant a certificate of appealability to proceed

on appeal pursuant to 28 U.S.C. § 2253(c).

      Before the district court, appellant raised three challenges to his

first-degree murder conviction. He alleged that 1) the state trial court should

have instructed the jury on the lesser included offense of second-degree murder;

2) his trial counsel was ineffective because he failed to request such an

instruction; and 3) the evidence was insufficient to support his conviction. The

magistrate judge noted that these three issues had been addressed and decided on

the merits by the Oklahoma Court of Criminal Appeals.     See Appellant’s App.

at 2. 2 Appellant does not contest otherwise. Under 28 U.S.C. § 2254(d), as

amended by AEDPA, when a state court has decided issues on the merits, we

may grant habeas relief only if appellant can show that the state court decision

“was contrary to, or involved an unreasonable application of, clearly established


2
       The district court adopted, after de novo review of appellant’s objections,
the report and recommendation of the magistrate judge in this case.    See
Appellant’s App. at 22-23.

                                         -2-
Federal law, as determined by the Supreme Court of the United States,”       id.

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,”   id. § 2254(d)(2).

      Appellant does not challenge the district court’s rejection of his sufficiency

of the evidence argument on appeal; therefore, that issue is abandoned and

deemed waived.    See State Farm Fire & Cas. Co. v. Mhoon       , 31 F.3d 979, 984 n.7

(10th Cir. 1994). Appellant’s arguments on the remaining two issues do not

challenge any factual findings. Under the above standard, then, we review these

two issues to determine if the state court 1) reached conclusions contrary to

a principle of law articulated by the Supreme Court; 2) decided them differently

than the Supreme Court on materially indistinguishable facts; or 3) applied the

governing law to the facts of appellant’s case in an objectively unreasonable

manner. Williams v. Taylor , 529 U.S. 362, 405-06, 410 (2000).

      Appellant argues that the state court’s failure to give the jury a

lesser-included offense instruction on second degree murder violated his rights

to due process and cannot be considered harmless error in light of certain

comments made by defense counsel in closing argument.       3
                                                                The district court



3
       Counsel apparently argued that because a jury had found the evidence
insufficient to convict appellant’s co-defendant, who had admitted firing his gun
at the deceased, the evidence against appellant, who denied firing a gun, was not
sufficient to support a first degree murder conviction. Appellant’s App. at 18
n.10.

                                           -3-
disagreed with appellant’s argument that these comments were tantamount to

suggesting that appellant was guilty of second degree murder. Appellant’s App.

at 18 n.10.   4
                  It also held that the evidence was insufficient under Oklahoma law

to support an instruction of second degree murder.          Id. Further, and most

importantly, the district court concluded, in accord with       Lujan v. Tansy , 2 F.3d

1031, 1036 (10th Cir. 1993), that appellant could not demonstrate entitlement to

habeas relief for the failure to give a lesser-included offense instruction even if

the evidence were sufficient to warrant the instruction. Appellant’s App. at 15.

Appellant’s arguments on appeal do not challenge the district court’s ruling on

this point and therefore do not demonstrate that the state court’s decision denying

habeas relief violated the standards set out in AEDPA.

       Similarly, appellant contends that his trial counsel was ineffective for

failing to request a lesser-included instruction on second degree murder. Noting

that a second degree murder instruction would have been incompatible with

appellant’s innocence defense at trial, the district court determined that failing to

request a lesser-included instruction was not ineffective assistance of counsel.


4
       We cannot review the district court’s conclusion on this point because
counsel has not provided us with a transcript of closing arguments on appeal,
and has included only selected brief quotations in his brief. See McGinnis v.
Gustafson , 978 F.2d 1199, 1200-01 (10th Cir. 1992) (failure to include transcript
“raises an effective barrier to informed substantive appellate review”). We
remind counsel of his duty to “file an appendix sufficient for considering and
deciding the issues on appeal” 10th Cir. R. 30.1(A)(1).

                                             -4-
Appellant’s App. at 19-20. The court reiterated that the evidence did not support

a second degree murder instruction and concluded that appellant had not

demonstrated “prejudicial performance” by trial counsel.    Id. at 20. Appellant’s

arguments on appeal again do not challenge this dispositive ruling; therefore, he

has not demonstrated that the state court decision violated federal law as set out

in § 2254(d)(1).

      For substantially the same reasons set forth in the magistrate judge’s Report

and Recommendation dated November 20, 1999, the judgment of the United

States District Court for the Western District of Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                           -5-
