                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       February 7, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JESUS HERNANDEZ,

             Petitioner-Appellant,

v.                                                         No. 13-5107
                                              (D.C. No. 4:10-CV-00534-GKF-TLW)
JUSTIN JONES, Director of the                              (N.D. Okla.)
Oklahoma Department of Corrections,

             Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Jesus Hernandez, a pro se Oklahoma prisoner, seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254

habeas petition.1 See 28 U.S.C. § 2253(c)(1)(A) (stating that no appeal may be taken


*
       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. This order is not binding precedent, except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 and 10th
Cir. R. 32.1.
1
      We liberally construe Mr. Hernandez’s pro se materials. See Van Deelen v.
Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
from a final order disposing of a § 2254 petition unless petitioner first obtains a

COA). We deny a COA and dismiss the appeal.

                                            I

      Mr. Hernandez was tried by a jury on two counts of first-degree murder for the

stabbing death of his pregnant girlfriend. On count one, he was convicted and

sentenced to life in prison without the possibility of parole. On count two, he was

convicted of the lesser charge of second-degree murder and sentenced to a

consecutive thirty-year term. The Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed his convictions and sentence, and the trial court denied post-conviction

relief. The OCCA then affirmed the denial of post-conviction relief, and

Mr. Hernandez filed this § 2254 petition. The district court denied the petition as

well as a COA, and Mr. Hernandez now seeks a COA from this court.

                                            II

      “A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.

§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which is

accomplished when an applicant shows “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) (internal quotation


                                          -2-
marks omitted). Where a petition has been denied on procedural grounds, an

applicant “must also show ‘that jurists of reason would find it debatable . . . whether

the district court was correct in its procedural ruling.’” Coppage v. McKune,

534 F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529 U.S. at 484). Where a state

court has adjudicated the merits of a claim raised in a federal habeas petition, as

occurred here, we may grant habeas relief only where the state court decision was

“contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court” or was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d); Dockins v. Hines, 374 F.3d 935, 937-38 (10th Cir.

2004).

         Mr. Hernandez seeks a COA to pursue three claims: 1) that he was denied a

fair trial by the admission of a crime-scene video; 2) that he cannot be punished twice

for committing a single act of violence; and 3) that his trial counsel rendered

ineffective assistance.2


2
       In the district court, Mr. Hernandez argued that both trial and appellate counsel
were ineffective, specifically appellate counsel by failing to communicate with him
and help him understand his constitutional rights. R., Vol. 1 at 13. He also argued
that interpreter services were withheld until late in the trial and during his appeal. In
his COA application, Mr. Hernandez does not mention his claim that an interpreter
was withheld, and he only refers to ineffective assistance of appellate counsel in the
heading section of his argument. We decline to consider these and any other
inadequately presented issues. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening brief.”); United States
                                                                               (continued)
                                          -3-
      Mr. Hernandez’s first contention is unavailing, as no reasonable jurist would

debate whether Mr. Hernandez was a denied a fair trial by the admission of the

crime-scene video. See Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002)

(“Under Tenth Circuit precedent, [a petitioner] may only obtain habeas relief for an

improper state evidentiary ruling if the alleged error was so grossly prejudicial that it

fatally infected the trial and denied the fundamental fairness that is the essence of due

process.” (brackets and internal quotation marks omitted)). The OCCA explained

that the video “accurately depicted the location of [the victim’s] body . . . and gave

the jury a view of the entire crime scene, including blood spatter and pooling of

blood in relation to her body.” R., Vol. 1 at 100. The OCCA also determined that

the video corroborated witnesses’ testimony without focusing on the body for an

inordinate duration. And although there were photos of the crime scene, the OCCA

found the video was not cumulative because it provided a walkthrough visualization

not provided by the photos. Given this explanation, we agree with the district court

that the video was not so prejudicial as to render the trial fundamentally unfair.

      Mr. Hernandez next contends he cannot be punished twice for committing a

single act of violence.3 To the extent Mr. Hernandez maintains that his sentences


v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (finding waiver where applicant
failed to address claim in either his COA application or appeal brief).
3
       To the extent Mr. Hernandez characterizes this claim as a double jeopardy
violation, we note that he attempted to amend his § 2254 petition to advance this
theory but the district court ruled he was raising a new claim that was time-barred.
See R., Vol. 1 at 357-58. Mr. Hernandez offers no argument suggesting that the
                                                                            (continued)
                                           -4-
violate Oklahoma’s prohibition against multiple sentences found at Okla. Stat. tit. 21,

§ 11, the OCCA rejected this claim on direct appeal, ruling that although “various

acts are part of the same transaction, they will constitute separate and distinct crimes

where they are directed at separate and distinct persons.” Id. at 101. The OCCA

observed that the jury convicted Mr. Hernandez of killing two people—his pregnant

girlfriend and her unborn child—and concluded that state statutes authorized separate

punishments. Mr. Hernandez disputes this conclusion, but the OCCA’s interpretation

of state law is not cognizable on federal habeas review. See Estelle v. McGuire,

502 U.S. 62, 67-68 (1991). Moreover, as the state’s highest criminal court, the

OCCA’s conclusion regarding the intent of Oklahoma’s legislature was binding.

See Cummings v. Evans, 161 F.3d 610, 614-15 (10th Cir. 1998). Thus, no reasonable

jurist could debate the district court’s resolution of this claim.

       Finally, Mr. Hernandez contends his trial counsel was ineffective in failing to

impeach witnesses who proffered contradictory testimony. Although he raised this

claim in his post-conviction proceedings, the district court ruled it was procedurally

defaulted because Mr. Hernandez failed to raise it on direct appeal. See English v.

Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (recognizing Oklahoma’s procedural bar

against claims of ineffective assistance of trial counsel not raised on direct appeal).

“Where a plain procedural bar is present and the district court is correct to invoke it


district court’s procedural ruling was wrong or even debatable, and as a consequence,
we decline to consider the issue, see Springfield, 337 F.3d at 1178.


                                           -5-
to dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Slack, 529 U.S. at 484. Mr. Hernandez offers no argument

suggesting the district court erred in applying Oklahoma’s procedural bar. Nor could

any reasonable jurist debate the district court’s conclusion that the claim was

defaulted. See Fairchild v. Workman, 579 F.3d 1134, 1142 (10th Cir. 2009) (“[T]he

Oklahoma bar will apply in those limited cases meeting the following two conditions:

trial and appellate counsel differ and the ineffectiveness claim can be resolved upon

the trial record alone.” (internal quotation marks omitted)). This claim is therefore

unavailing as well.

      Accordingly, we deny a COA and dismiss the appeal.

                                                 Entered for the Court


                                                 Wade Brorby
                                                 Senior Circuit Judge




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