                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 22 2002
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 CECIL WAYNE HALLMARK,

                Petitioner - Appellant,                   No. 01-5118
           v.                                          (N.D. Oklahoma)
 TOM MARTIN, Warden, Great Plains                   (D.C. No. 97-CV-567-H)
 Correctional Facility,

                Respondent - Appellee,




                              ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , 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). The case is therefore submitted

without oral argument.




       *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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 Cecil W. Hallmark was convicted of the following offenses in an

Oklahoma state court: (1) first degree rape; (2) first degree burglary; (3)

attempted rape in the first degree; and (4) sexual battery. On direct appeal, the

Oklahoma Court of Criminal Appeals (“OCCA”) issued an opinion concluding

that Mr. Hallmark’s convictions for attempted rape and for sexual battery violated

the constitutional prohibition against double jeopardy. Accordingly, the OCCA

remanded the case to the trial court with instructions to dismiss those convictions.

      The OCCA further concluded that the trial court had erred in failing to

order a presentence investigation. The OCCA thus directed the trial court to

resentence Mr. Hallmark on the rape and burglary convictions after the

completion of the presentence investigation. On remand, the trial court conducted

the investigation and then imposed consecutive sentences of seventy-five years

and twelve years on Mr. Hallmark’s two remaining convictions.

      After exhausting his state court post-conviction remedies, Mr. Hallmark

filed the instant habeas corpus petition in federal district court on June 13, 1997.

He asserted the following claims: (1) that he received ineffective assistance of

counsel at trial; (2) that the state trial judge incorrectly answered a question

raised by the jury during deliberation; (3) that there was insufficient evidence to

support his convictions; (4) that he received ineffective assistance of counsel on

direct appeal; (5) that the trial court failed to properly instruct the jury on the


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elements of first degree burglary; (6) that the trial court erred in refusing to

suppress testimony regarding the victim’s identification of Mr. Hallmark on the

night of the crime; and (7) that the prosecutor engaged in misconduct. The

district court rejected all of Mr. Hallmark’s claims, and he then sought to appeal

that decision to this court.

      In a prior order we granted Mr. Hallmark’s application for a certificate of

appealability as to certain issues arising out of Mr. Hallmark’s claim that he

received ineffective assistance of counsel in his direct appeal. We denied Mr.

Hallmark’s application for a certificate of appealability on his other claims. We

also directed the parties to supplement the record with the jury instructions from

Mr. Hallmark’s trial.

      Our grant of a certificate of appealability was based on Mr. Hallmark’s

allegation that his appellate counsel failed to challenge the jury instructions

pursuant to Flores v. State , 896 P.2d 558, 562 (Okla. Crim. App. 1995).     See

Aplt’s Br. at 7. In Flores , the OCCA considered a jury instruction that stated that

the defendant was “presumed to be not guilty” rather than “presumed innocent.”

896 P.2d at 562. The OCCA concluded that the instruction did not properly

explain the presumption of innocence, and it therefore reversed the conviction.

Id. Mr. Hallmark maintains that the trial court gave a similar instruction in his




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case and that appellate counsel was ineffective for failing to challenge the

instruction pursuant to   Flores .

         Our review of the jury instructions (contained in the supplemental record

filed with this court on March 11, 2002) reveals that the trial court here did not

instruct the jury that Mr. Hallmark was “presumed to be not guilty,” as did the

trial court in Flores. In particular, instruction number four states that “[t]he

defendant is presumed innocent of the crime, and the presumption continues

unless after consideration of all the evidence you are convinced of his guilt

beyond a reasonable doubt.” Supp. Rec., Instr. no. 4 (emphasis added).

Accordingly, Flores does not provide a basis for challenging the jury instructions,

and Mr. Hallmark’s appellate counsel was not ineffective for failing to raise that

issue.

         Accordingly, we AFFIRM the district court’s denial of Mr. Hallmark’s

claim for ineffective assistance of appellate counsel.



                                     Entered for the Court,



                                     Robert H. Henry
                                     Circuit Judge




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