                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 7 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DANNY E. LOOK,

                Petitioner-Appellant,

    v.                                                   No. 96-6045
                                                   (D.C. No. CIV-95-274-M)
    STEVE HARGETT,                                       (W.D. Okla.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner Danny Eugene Look appeals the district court’s denial of his

petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Because

the exclusion of certain evidence did not violate petitioner’s constitutional rights

and because the evidence is sufficient to support his conviction, we affirm.

      Petitioner was convicted of embezzlement by a trustee after former

conviction of two or more felonies, Okla. Stat. tit. 21, § 1454 (1981), for which

he received a forty-five year sentence. He was acquitted, however, of a second

charge of assault and battery with a dangerous weapon with intent to kill. At

trial, the victim of both crimes testified that her son, who was not a party to the

proceedings, was a nonviolent, calm person without violent tendencies. Petitioner

was not permitted to impeach this testimony with evidence of her son’s former

homicide conviction. Petitioner was also not permitted to impeach the victim’s

son’s testimony with the former conviction. Based primarily on the victim’s

testimony, petitioner was convicted of embezzling approximately $50,000 with

which the victim had entrusted him for investment.

      On appeal, petitioner argued that exclusion of the impeachment evidence

was an error which resulted in a miscarriage of justice, and that the evidence was

not sufficient to support his conviction. The Oklahoma Court of Criminal

Appeals summarily affirmed petitioner’s conviction. Petitioner then filed this

petition for a writ of habeas corpus, alleging that (1) exclusion of the


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impeachment evidence violated due process and his rights under the Fifth and

Sixth Amendments; and (2) the evidence was insufficient to support his

conviction. In a well-written report and recommendation, the magistrate judge to

whom the matter was referred found that exclusion of the impeachment evidence

did not render the trial so fundamentally unfair as to constitute a denial of due

process, and that even if exclusion of the evidence was erroneous, there was no

showing that had the evidence been admitted, the outcome of the trial would have

been different. R. I, doc. 11 at 3. The magistrate judge also concluded that the

evidence was sufficient to support petitioner’s conviction. Id. at 4-6. Upon

de novo review, the district court adopted the report and recommendation, and

this appeal followed.

      We review the district court's denial of petitioner's habeas corpus petition

de novo. Bowser v. Boggs, 20 F.3d 1060, 1062 (10th Cir. 1994). While a due

process challenge to a state evidentiary ruling is reviewed only for fundamental

unfairness, an alleged violation of the Sixth Amendment right to confrontation is

reviewed de novo. Matthews v. Price, 83 F.3d 328, 331, 332 (10th Cir. 1996); see

also Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (discussing narrow

review of due process claims).

      After reviewing the record, we conclude that petitioner was deprived of

neither due process nor his right to confrontation. Although petitioner now


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argues that the excluded evidence was admissible to impeach the victim’s

credibility, his offer of proof at trial sought submission only to show that the

crime for which the victim’s son had been convicted was similar to the attempted

strangulation with which petitioner was charged. Tr. II at 227-28. As petitioner

was acquitted on this second charge, he could not have been prejudiced by the

court’s exclusion of the homicide conviction. Moreover, petitioner was given the

opportunity to cross-examine the victim on her son’s propensity for violence, and

was permitted to impeach her testimony by showing that he was involved in a

knife altercation and that he had previously attacked the victim. Id. at 108-09,

121-24, R. II, doc. 2, attached transcript excerpt at 186. The victim’s son and her

granddaughter’s former boyfriend also testified to these events. Tr. III at 78-79,

112-114. Evidence of the victim’s son’s homicide conviction, while marginally

relevant to impeach the victim’s testimony regarding her son’s nonviolent nature,

involved a collateral issue and was cumulative. See, e.g., Maes v. Thomas, 46

F.3d 979, 988 (10th Cir. 1995) (holding exclusion of evidence regarding witness’s

probation status not fundamentally unfair when petitioner presented other

evidence of his violent past).

      As for petitioner’s claim that he was prejudiced by his inability to impeach

the victim’s son with the former homicide conviction, petitioner has alleged only

violations of state law. Habeas relief is not available for state law errors. See


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Matthews, 83 F.3d at 331. Even assuming that petitioner alleged a constitutional

violation as well, we see no fundamental unfairness or evidence that the exclusion

had a substantial effect on the jury’s verdict, in light of the limited nature of the

victim’s son’s testimony regarding the embezzlement charge.

      We also conclude that the evidence was sufficient to support petitioner’s

conviction. We review petitioner’s sufficiency of the evidence claim de novo to

determine, after considering the trial evidence in the light most favorable to the

prosecution, whether a rational trier of fact could have found each separate

element of the crime charged was proved beyond a reasonable doubt. Maes, 46

F.3d at 988; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). Upon

reviewing the record, we hold that a rational trier of fact could find each element

of the embezzlement charge proved beyond a reasonable doubt.

      We hereby grant petitioner a certificate of appealability. The judgment of

the district court is AFFIRMED. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      Mary Beck Briscoe
                                                      Circuit Judge




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