                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           OCT 15 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    FLOYD HASKELL JUMP, JR.,

                  Petitioner-Appellant,

    v.                                                     No. 00-6350
                                                     (D.C. No. 99-CV-1499-A)
    GARY GIBSON, Warden of the                             (W.D. Okla.)
    Oklahoma State Penitentiary,

                  Respondent-Appellee.


                              ORDER AND JUDGMENT           *




Before EBEL , KELLY , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

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      This order and judgment is not binding precedent, except under the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
      On September 24, 2001, petitioner filed a motion for oral argument. The
motion is denied.
      Petitioner Floyd Haskell Jump, Jr., appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court’s denial of his petition for writ of

habeas corpus under 28 U.S.C. § 2254. We deny his request for a COA and

dismiss the appeal.   2




                                          I.

      Mr. Jump and his co-defendant, Ray Newton Crabtree, were convicted in

a joint trial in the District Court of McClain County, State of Oklahoma, of two

counts of feloniously pointing a weapon and one count of kidnaping, robbery,

and burglary in the first degree. In a second stage proceeding held pursuant to

Okla. Stat. tit. 21, § 51(B), Mr. Jump and Mr. Crabtree were convicted of

committing these offenses after former conviction of two or more felonies, and

the court sentenced both defendants to consecutive forty-year terms of

imprisonment on each count.

      On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)

reversed the two convictions for feloniously pointing a weapon and affirmed

Mr. Jump’s remaining convictions. Mr. Jump subsequently sought



2
       We previously entered a jurisdictional show cause order directing the
parties to file briefs addressing the issue of whether Mr. Jump filed his notice
of appeal in a timely manner. Having reviewed the parties’ briefs, we conclude
that this appeal was filed in a timely manner and that we have jurisdiction over
the appeal.

                                          -2-
post-conviction relief in the state district court. The court denied Mr. Jump’s

application for post-conviction relief, and the OCCA affirmed on appeal.

      Pursuant to 28 U.S.C. § 2254, Mr. Jump then filed a petition for writ

of habeas corpus in the United States District Court for the Western District

of Oklahoma asserting the following grounds for relief: (1) he was denied a fair

trial because he was not granted a severance and tried separately from

Mr. Crabtree; (2) his due process rights were violated as the result of a variance

between the kidnaping charge and the jury instructions at trial; (3) he was

subjected to double jeopardy in violation of the Fifth Amendment and Oklahoma

law because the burglary and robbery counts constituted a single offense; (4) his

sentences were improperly enhanced because two of his prior convictions were

part of a single transaction; (5) the sentences imposed were excessive; and (6) he

was denied effective assistance of trial and appellate counsel. The magistrate

judge recommended to the district court that Mr. Jump’s habeas petition be

denied. Mr. Jump filed objections to the magistrate judge’s recommendations, but

he only objected to the recommendations concerning his claims of denial of

severance, double jeopardy, and ineffective assistance of counsel. The district

court rejected Mr. Jump’s objections and denied his habeas petition and

application for a COA.




                                         -3-
                                            II.

       Mr. Jump is seeking a COA on his claims of denial of severance, double

jeopardy, and ineffective assistance of counsel. In order to receive a COA,

Mr. Jump must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

       1. Severance

       “[W]hether the trial court erred in denying severance is generally a question

of state law that is not cognizable on federal habeas appeal . . . [A] criminal

defendant has no constitutional right to severance unless there is a strong showing

of prejudice caused by the joint trial.”   Fox v. Ward , 200 F.3d 1286, 1292

(10th Cir.), cert. denied , 531 U.S. 938 (2000) (quotation omitted). Mr. Jump

argues that he was prejudiced as a result of the state district court’s refusal to

sever because he and Mr. Crabtree asserted mutually antagonistic defenses to the

charges of burglary and robbery. We disagree.     3




3
       Mr. Jump also claims he was prejudiced by the joint trial because the jury
was not specifically instructed regarding the evidence it was to consider as to
each defendant, the jury did not make individualized findings of guilt, and he had
to share peremptory challenges. These claims are without merit. First, Mr. Jump
has failed to establish that there was evidence introduced at trial that could only
be properly considered by the jury as to Mr. Crabtree. Second, the record reveals
that the jury was in fact separately instructed as to each defendant on each
separate offense, see Ex. F to Respondent’s Resp. to Pet. for Habeas Corpus
(Dist. Ct. Doc. No. 17), and that it made separate determinations of guilt for
each defendant on each offense, see Trial Tr., Vol. II, at 439-42. Finally,
                                                                        (continued...)

                                            -4-
      As we have previously recognized,

      Mutually antagonistic defenses are not prejudicial per se. In order to
      prevail on such a theory for severance, the defendant must show real
      prejudice, rather than merely note that each defendant is trying to
      exculpate himself while inculpating the other. Such actual prejudice
      is shown if the defenses are truly mutually exclusive, such that the
      jury could not believe the core of one defense without discounting
      entirely the core of the other.

Id. at 1293 (quotations and citations omitted).

      The evidence at trial showed that only one of the defendants actually

entered the house of the victim and physically committed the burglary and

robbery, and the witnesses at trial provided conflicting identification testimony

concerning whether the individual was Mr. Jump or Mr. Crabtree. Relying on the

evidence that pointed to Mr. Crabtree as the individual who directly committed

the burglary and robbery, Mr. Jump claimed at trial that Mr. Crabtree acted alone

with respect to these crimes. In response to this accusation, Mr. Crabtree pointed

out to the jury that the victim of the burglary and robbery identified Mr. Jump as

the perpetrator of the crimes.

      While undoubtably antagonistic, the antagonism between these defenses

was insufficient to require severance. First, neither Mr. Jump nor Mr. Crabtree



3
 (...continued)
because he is not challenging the impartiality of the jury, Mr. Jump’s claim
regarding peremptory challenges only raises state law issues, and it is not a proper
basis for federal habeas relief. See Fox , 200 F.3d at 1293.

                                         -5-
disputed that they were in the immediate vicinity of the victim’s house at the time

the burglary and robbery were committed. Second, the evidence established that

the two men had acted in concert in committing a separate kidnaping immediately

prior to the commission of the burglary and robbery and that they were

subsequently apprehended together after attempting to flee in the truck that was

stolen during the burglary and robbery. Based on this evidence, the jury could

have reasonably concluded that, even if Mr. Crabtree was the one who directly

committed the burglary and robbery, Mr. Jump acted in concert with him, and he

acted knowingly and with criminal intent in instigating, promoting, or

encouraging the commission of these crimes. Under Oklahoma law, this was

sufficient to convict Mr. Jump of aiding and abetting the burglary and robbery.    4




4
       See Okla. Stat. tit. 21, § 172 (“All persons concerned in the commission of
crime, whether it be felony or misdemeanor, and whether they directly commit the
act constituting the offense, or aid and abet in its commission, though not present,
are principals”); OUJI-CR (2d) 2-6 (defining “aiding and abetting” as acting
“knowingly and with criminal intent . . . in instigating, encouraging, promoting,
or aiding in the commission of [a] criminal offense”);    Spears v. State , 900 P.2d
431, 438 (Okla. Crim. App. 1995) (holding that “only slight participation is
needed to change a person’s status from mere spectator into aider and abetter”);
Washington v. State , 554 P.2d 819, 822 (Okla. Crim. App. 1976) (finding
sufficient evidence to support conviction for aiding and abetting a burglary where
there was evidence that either defendant or another individual committed the
illegal breaking, defendant was placed at the scene of the crime, and defendant
was found with stolen property after the crime);     Henson v. State , 500 P.2d 859,
860-61 (Okla. Crim. App. 1972) (finding sufficient evidence to support
conviction for aiding and abetting a burglary where, even though there was no
evidence the defendant participated in the actual entry into the premises, the
                                                                          (continued...)

                                           -6-
      In sum, Mr. Jump’s defense to the burglary and robbery charges was only

mutually exclusive of Mr. Crabtree’s defense in terms of who directly committed

the crimes, and the jury could have convicted Mr. Jump as a principal based on

the aiding and abetting evidence standing alone. Consequently, Mr. Jump cannot

show sufficient actual prejudice as a result of the denial of his motion to sever,

and we deny his request for a COA on this issue.       Cf. Fox , 200 F.3d at 1294

(holding that felony murder defendant did not suffer actual prejudice as a result of

joint trial with co-defendant where, while each defendant tried to exculpate

himself by inculpating the other in the actual commission of the murders, there

was sufficient evidence to establish that both defendants participated in the

underlying robbery, regardless of their relative culpability for the murders).

      2. Double Jeopardy

      The Double Jeopardy Clause of the Fifth Amendment “protects against

multiple punishments for the same offense.”        Cummings v. Evans , 161 F.3d 610,

614 (10th Cir. 1998) (quotation omitted). However, this protection is limited to

determining “whether [the] state legislature intended to prescribe cumulative

punishments for a single criminal incident, [and] we are bound by a state court’s



4
 (...continued)
evidence showed that defendant had been operating a vehicle in the area of the
burglary in a suspicious manner, and defendant offered no explanation for his
suspicious behavior).

                                          -7-
determination of the legislature’s intent.”     Id. at 615. “In other words, if the

highest state court determines that the legislature intended to punish separate

offenses cumulatively, a federal habeas court must defer to that conclusion.”           Id.

       The OCCA, the highest court on criminal matters in Oklahoma,            see

Brecheen v. Reynolds , 41 F.3d 1343, 1348 n.2 (10th Cir. 1994), has held that

burglary and robbery are separate offenses under Oklahoma law and that

cumulative convictions for both do not violate double jeopardy.          Taylor v. State ,

889 P.2d 319, 339 (Okla. Crim. App. 1995).          5
                                                        Accordingly, Mr. Jump is not

entitled to a COA on his double jeopardy claim.

       3. Ineffective Assistance of Trial and Appellate Counsel

       The district court found that Mr. Jump procedurally defaulted on his claim

that he received ineffective assistance of trial counsel by failing to raise it on

direct appeal. Having determined that the requirements of           English v. Cody ,

146 F.3d 1257, 1264 (10th Cir. 1998) were satisfied, we deny Mr. Jump’s



5
       In addition, Mr. Jump’s convictions do not violate double jeopardy under
the “same-elements test” of Blockburger v. United States , 284 U.S. 299, 304
(1932). Under Blockburger , multiple convictions do not violate double jeopardy
if each offense requires proof of an element not contained in the other.        United
States v. Dixon , 509 U.S. 688, 696 (1993). Under Oklahoma law, different
elements are required to prove burglary and robbery,       compare Okla. Stat. tit. 21, §
1431 (setting forth elements of burglary in first degree)      with id. § 791 (setting
forth elements of robbery), and it is therefore not a violation of double jeopardy
to charge a defendant with both crimes based on a single criminal episode.
Cannon v. State , 827 P.2d 1339, 1342 (Okla. Crim. App. 1992).

                                              -8-
request for a COA on this claim. Because he has failed to make a substantial

showing that his appellate counsel’s performance was deficient and prejudicial

as required by Strickland v. Washington , 466 U.S. 668, 687 (1984) and its

progeny, we also deny Mr. Jump’s request for a COA on his claim of ineffective

assistance of appellate counsel.

      For the reasons set forth above, we find that Mr. Jump has not made

a substantial showing of the denial of a constitutional right, and we therefore

DENY his request for a certificate of appealability and DISMISS the appeal.


                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




                                         -9-
