                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           APR 6 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


FRANKLIN DECKARD,

       Petitioner-Appellant,
                                                        No. 04-5125
v.                                             (Northern District of Oklahoma)
                                                    (D.C. No. 01-CV-85)
RON WARD,

       Respondent-Appellee.




                                      ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Proceeding pro se, Franklin Deckard seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Deckard has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      After an Oklahoma jury trial, Deckard was convicted of one count of First

Degree Murder and one count of Attempted First Degree Murder. He was
sentenced to life imprisonment without the possibility of parole on the First

Degree Murder conviction and life imprisonment with the possibility of parole on

the Attempted Murder conviction. Deckard appealed the convictions and his

sentence. Specifically he argued that (1) he was denied a fair trial because the

prosecutor misled the jury regarding the burden of proof on his defense of

insanity, (2) there was insufficient evidence to prove he was sane beyond a

reasonable doubt, (3) the trial court committed reversible error when it failed to

instruct upon second degree murder, (4) prosecutorial misconduct deprived him of

a fair trial, (5) his defense counsel was ineffective, and (6) his sentences were

excessive. The Oklahoma Court of Criminal Appeals (“OCCA”), however,

affirmed Deckard’s convictions and sentences.

      Deckard filed the instant § 2254 habeas petition on February 5, 2001. In

his petition, Deckard raised three claims of error: (1) the trial court’s failure to

instruct on second degree murder deprived him of a fair trial, (2) defense counsel

rendered constitutionally ineffective assistance, and (3) prosecutorial misconduct

rendered his trial fundamentally unfair. The district court addressed each claim.

It first concluded that Deckard’s claim relating to the failure to give a second

degree murder instruction did not raise a federal constitutional question. Lujan

v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (“[A] petitioner in a non-capital case

is not entitled to habeas relief for the failure to give a lesser-included instruction


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even if in our view there was sufficient evidence to warrant the giving of an

instruction on a lesser included offense.” (quotation omitted)). Next, applying the

standard set forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), the district court concluded that the OCCA’s adjudication of

Deckard’s two remaining claims was not contrary to, nor an unreasonable

application of clearly established federal law. 28 U.S.C. § 2254(d). Accordingly,

the district court denied Deckard relief on all three claims raised in the § 2254

petition. 1

       This court cannot grant Deckard a COA unless he can demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Deckard has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003). Deckard is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He


       1
        In his application for COA and supporting brief, Deckard raises additional
claims which were presented to the OCCA but which were not presented to the
district court. Because these claims were not raised before the federal district
court, we will not consider them. See Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992).

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must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Deckard’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that Deckard

is not entitled to a COA. The district court’s resolution of Deckard’s claims is

not reasonably subject to debate and the claims are not adequate to deserve

further proceedings. Accordingly, Deckard has not “made a substantial showing

of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §

2253(c)(2).

      This court denies Deckard’s request for a COA and dismisses this appeal.

                                        Entered for the Court
                                        PATRICK FISHER, Clerk of Court


                                        By
                                                Deputy Clerk




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