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

                           FOR THE TENTH CIRCUIT                          June 5, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JIMMY FOSTER,

             Petitioner - Appellant,

v.                                                          No. 14-5119
                                               (D.C. No. 4:11-CV-00503-CVE-FHM)
ANITA TRAMMELL,                                             (N.D. Okla.)

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Jimmy Foster seeks a certificate of appealability (“COA”) to appeal from the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and

dismiss this proceeding.

                                           I

      Foster was accused of killing Tyri Rodgers, who died after being shot at the

Apache Manor Apartments in Tulsa, Oklahoma, on July 9, 2006. At trial, Foster

admitted shooting Rodgers. He testified that Rodgers was trying to shoot him, and so

he acted in self-defense. The physical evidence included three .40 caliber casings

      *
         This order is not binding precedent, except under the doctrines of law of the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.
from Foster’s gun and a 9 mm casing from the area where Rodgers had been

standing. No 9 mm handgun was found, and other witnesses testified that Rodgers

had not been armed.

       A jury found Foster guilty after being instructed on the elements of first degree

malice aforethought murder and self-defense. In his direct appeal, Foster challenged

the sufficiency of the evidence to support the conviction and to overcome his

assertion of self-defense. The Oklahoma Court of Criminal Appeals (“OCCA”) held

that, viewing the evidence in the light most favorable to the State, it was sufficient to

prove beyond a reasonable doubt that Foster was guilty of first degree murder

because he admitted the elements of the crime and the jury could have rationally

found beyond a reasonable doubt that he did not act in self-defense. Accordingly, the

OCCA affirmed his conviction and sentence of life imprisonment.

       Foster then filed his § 2254 petition, again challenging the sufficiency of the

evidence. He conceded that the OCCA identified the correct legal principle, but he

argued that it applied that principle unreasonably to the facts of his case because the

physical evidence (primarily the 9 mm casing) required the jury to credit Foster’s

testimony. The district court disagreed, finding that the evidence, when viewed in

the light most favorable to the prosecution, was sufficient for a rational trier of fact to

have found the essential elements of the crime beyond a reasonable doubt. It denied

relief and denied a COA.




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                                           II

      To appeal, Foster must obtain a COA, which requires him to make “a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). “Where a

district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Because the OCCA considered Foster’s claims on the merits, he is not entitled

to habeas relief unless the OCCA’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or was “based on an unreasonable

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

proceeding.” § 2254(d)(1), (2). “Thus, the decision whether to grant [the] COA

request rests on whether reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong in light of the deference owed to the

OCCA’s adjudication of [the] claims.” Howell v. Trammell, 728 F.3d 1202, 1225

(10th Cir. 2013) (quotation omitted).

      When a habeas petitioner challenges the sufficiency of the evidence, “the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319


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(1979). Under the applicable provision of Oklahoma law, “[a] person commits

murder in the first degree when that person unlawfully and with malice aforethought

causes the death of another human being.” Okla. Stat. tit. 21, § 701.7(A). The only

element controverted by Foster is whether the shooting was unlawful. Because he

presented evidence that he acted in self-defense, it was the State’s burden to prove

beyond a reasonable doubt that he was not acting in self-defense. Dawkins v. State,

252 P.3d 214, 220 (Okla. Crim. App. 2011).

       Foster argues that the presence of a 9 mm casing, in good condition, where

Rodgers had been standing, compels a finding that he acted in self-defense. In his

view, any other conclusion is unreasonable. We disagree. Several witnesses testified

that Rodgers did not have a gun or that he did not shoot at Foster. There also was

testimony that the Apache Manor apartment complex was the site of frequent “shots

fired” and “shots heard” police calls. The jury could have reasonably credited this

testimony, decided that the 9 mm casing was not related to this shooting, and rejected

Foster’s theory that Rodgers must have had a 9 mm handgun, which a bystander then

removed from the scene. See Jackson, 443 U.S. at 319 (noting that it is “the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts”).




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                               III

For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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