                                                                                     F IL E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                          U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                                 January 26, 2007
                                        T E N T H C IR C U IT
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court

 JA M ES B RO WN H EN D ER SO N,

                    Petitioner-A ppellant,                         No. 06-5185

           v.                                                     (N .D. of Okla.)

 JUSTIN JONES, Director, Oklahoma                       (D.C. No. 03-CV-459-CVE-JVC )
 Department of Corrections,

                    Respondent-Appellee.



                O R D E R D E N Y IN G C E R T IF IC A T E O F A PP E A L A B IL IT Y *


Before H A R T Z, E B E L , and T Y M K O V IC H , Circuit Judges. * *




      James Brown Henderson seeks a Certificate of Appealability (COA) for his

28 U.S.C. § 2254 habeas petition. He proceeds pro se so we construe his

pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). W e

will issue a CO A “only if the applicant has made a substantial showing of the


       *
        This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         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.
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Based on a thorough

review of the record and the district court's well-reasoned analysis, we find no

constitutional rights were denied Henderson.

       W e DENY his request for a COA and DISM ISS the appeal.

                                    I. A nalysis

       Following a jury conviction for murder in 2001, Henderson is serving a life

sentence. After the Oklahoma Court of Criminal Appeals (O CCA) summarily

affirmed Henderson’s sentence in 2002, he sought habeas relief in federal district

court. Henderson raised three grounds for relief, all of which were denied by the

district court along w ith his request for COA.

       Henderson claimed (1) he was denied due process and equal protection

when the Oklahoma trial court determined the prosecutor had presented new

evidence sufficient to justify re-filing an Information charging Henderson with

First Degree M urder after dismissing prior charges for insufficient evidence to

support probable cause; (2) he was deprived the right to confrontation when the

jury was exposed to forensic evidence not introduced at trial; and (3) the trial

court denied him due process by coercing a deadlocked jury with a supplemental

Allen instruction. 1



       1
       O n appeal, H enderson appears to raise an additional claim that DNA
evidence should have been presented at trial that w ould have exonerated him.
                                                                     (continued...)

                                         -2-
      1. Due Process and Equal Protection in Refiling

      As the district court concluded, “U nder Oklahoma law , if a charge is

dismissed at preliminary hearing for insufficient evidence to support probable

cause, it may be refiled and the defendant held to answer at a second preliminary

hearing if the State produces additional evidence or other good cause justifying a

subsequent prosecution.” O p. and Order at 5. The district court correctly

identified the issue presented by Henderson as an issue of state law “not

cognizable on habeas corpus review” because no constitutional violations arose.

Id. at 6. Henderson was informed of charges, witnesses, and evidence against him

before trial. Thus, both due process and equal protection were afforded

Henderson.

      2. Right to Confrontation and Extrinsic Evidence

      O n habeas review of a jury’s improper exposure to extraneous evidence, w e

review whether the extraneous evidence “had [a] substantial and injurious effect

or influence on the jury's decision.” Vigil v. Zavaras, 298 F.3d 935, 942 (10th

Cir. 2002) (internal quotations omitted) (citing Brecht v. Abrahamson, 507 U.S.

619, 637 (1993)). Here, Henderson argues his verdict was compromised when a

juror viewed evidence— an envelope containing grass, a few hairs and some



      1
       (...continued)
This claim was not raised to the district court and therefore is not properly before
us on appeal. We deem it waived and do not address it.

                                         -3-
reddish-colored fiber— that had not been admitted at trial. The district court

found the extraneous materials did not affect the jury’s decision and based on our

review of the record, we agree. The trial court polled the jurors and they

unanimously answ ered that (1) they neither view ed nor discussed the materials in

their deliberations, and (2) it had no influence on their deliberations. The record,

moreover, discloses only one juror actually viewed the materials, the jury never

discussed the significance of the materials during their deliberations, and, finally,

the materials did not bear on a contested issue of fact at trial.

      In sum, we agree with the district court that the OCCA did not

unreasonably apply Supreme Court precedent in denying Henderson’s challenge to

the jury’s verdict.

      3. Coercion of Jury Through Allen Instruction

      An Allen instruction, taken from Allen v. United States, 164 U.S. 492,

501–02 (1896), is given to a jury:

      to encourage unanimity (without infringement upon the conscientious
      views of each individual juror) by urging each juror to review and
      reconsider the evidence in the light of the views expressed by other
      jurors, in a manner evincing a conscientious search for truth rather than
      a dogged determination to have one’s own way in the outcome of the
      deliberative process.

United States v. Smith, 857 F.2d 682, 683–84 (10th Cir. 1988).

      An Allen instruction cannot be “impermissibly coercive.” United States v.

Porter, 881 F.2d 878, 888 (10th Cir. 1989). In reviewing whether an Allen

                                           -4-
instruction is coercive, we consider “(1) the language of the instruction, (2)

whether the instruction is presented with other instructions, (3) the timing of the

instruction, and (4) the length of the jury’s subsequent deliberations.” United

States v. Arney, 248 F.3d 984, 988 (10th Cir. 2001).

      The district court reviewed the Allen instruction here on all four factors and

found the instruction not coercive. It concluded that the language of the

instruction complied with circuit precedent, and nothing in the timing of the

instruction or the jury’s subsequent deliberations suggests prejudice arising from

the instruction.

      Accordingly, we agree with the district court that the OCCA did not

unreasonably apply Supreme Court precedent on this issue.

                                  II. C onclusion

      For all of the foregoing reasons, we substantially agree with the district

court’s order, and, therefore DENY petitioner’s request for COA.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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