F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY E. LOOK,
Petitioner-Appellant,
v. No. 96-6045
(D.C. No. CIV-95-274-M)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. 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 Danny Eugene Look appeals the district court’s denial of his
petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Because
the exclusion of certain evidence did not violate petitioner’s constitutional rights
and because the evidence is sufficient to support his conviction, we affirm.
Petitioner was convicted of embezzlement by a trustee after former
conviction of two or more felonies, Okla. Stat. tit. 21, § 1454 (1981), for which
he received a forty-five year sentence. He was acquitted, however, of a second
charge of assault and battery with a dangerous weapon with intent to kill. At
trial, the victim of both crimes testified that her son, who was not a party to the
proceedings, was a nonviolent, calm person without violent tendencies. Petitioner
was not permitted to impeach this testimony with evidence of her son’s former
homicide conviction. Petitioner was also not permitted to impeach the victim’s
son’s testimony with the former conviction. Based primarily on the victim’s
testimony, petitioner was convicted of embezzling approximately $50,000 with
which the victim had entrusted him for investment.
On appeal, petitioner argued that exclusion of the impeachment evidence
was an error which resulted in a miscarriage of justice, and that the evidence was
not sufficient to support his conviction. The Oklahoma Court of Criminal
Appeals summarily affirmed petitioner’s conviction. Petitioner then filed this
petition for a writ of habeas corpus, alleging that (1) exclusion of the
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impeachment evidence violated due process and his rights under the Fifth and
Sixth Amendments; and (2) the evidence was insufficient to support his
conviction. In a well-written report and recommendation, the magistrate judge to
whom the matter was referred found that exclusion of the impeachment evidence
did not render the trial so fundamentally unfair as to constitute a denial of due
process, and that even if exclusion of the evidence was erroneous, there was no
showing that had the evidence been admitted, the outcome of the trial would have
been different. R. I, doc. 11 at 3. The magistrate judge also concluded that the
evidence was sufficient to support petitioner’s conviction. Id. at 4-6. Upon
de novo review, the district court adopted the report and recommendation, and
this appeal followed.
We review the district court's denial of petitioner's habeas corpus petition
de novo. Bowser v. Boggs, 20 F.3d 1060, 1062 (10th Cir. 1994). While a due
process challenge to a state evidentiary ruling is reviewed only for fundamental
unfairness, an alleged violation of the Sixth Amendment right to confrontation is
reviewed de novo. Matthews v. Price, 83 F.3d 328, 331, 332 (10th Cir. 1996); see
also Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (discussing narrow
review of due process claims).
After reviewing the record, we conclude that petitioner was deprived of
neither due process nor his right to confrontation. Although petitioner now
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argues that the excluded evidence was admissible to impeach the victim’s
credibility, his offer of proof at trial sought submission only to show that the
crime for which the victim’s son had been convicted was similar to the attempted
strangulation with which petitioner was charged. Tr. II at 227-28. As petitioner
was acquitted on this second charge, he could not have been prejudiced by the
court’s exclusion of the homicide conviction. Moreover, petitioner was given the
opportunity to cross-examine the victim on her son’s propensity for violence, and
was permitted to impeach her testimony by showing that he was involved in a
knife altercation and that he had previously attacked the victim. Id. at 108-09,
121-24, R. II, doc. 2, attached transcript excerpt at 186. The victim’s son and her
granddaughter’s former boyfriend also testified to these events. Tr. III at 78-79,
112-114. Evidence of the victim’s son’s homicide conviction, while marginally
relevant to impeach the victim’s testimony regarding her son’s nonviolent nature,
involved a collateral issue and was cumulative. See, e.g., Maes v. Thomas, 46
F.3d 979, 988 (10th Cir. 1995) (holding exclusion of evidence regarding witness’s
probation status not fundamentally unfair when petitioner presented other
evidence of his violent past).
As for petitioner’s claim that he was prejudiced by his inability to impeach
the victim’s son with the former homicide conviction, petitioner has alleged only
violations of state law. Habeas relief is not available for state law errors. See
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Matthews, 83 F.3d at 331. Even assuming that petitioner alleged a constitutional
violation as well, we see no fundamental unfairness or evidence that the exclusion
had a substantial effect on the jury’s verdict, in light of the limited nature of the
victim’s son’s testimony regarding the embezzlement charge.
We also conclude that the evidence was sufficient to support petitioner’s
conviction. We review petitioner’s sufficiency of the evidence claim de novo to
determine, after considering the trial evidence in the light most favorable to the
prosecution, whether a rational trier of fact could have found each separate
element of the crime charged was proved beyond a reasonable doubt. Maes, 46
F.3d at 988; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). Upon
reviewing the record, we hold that a rational trier of fact could find each element
of the embezzlement charge proved beyond a reasonable doubt.
We hereby grant petitioner a certificate of appealability. The judgment of
the district court is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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