F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARVIN L. HARDIN,
Petitioner-Appellant,
v. No. 96-6389
(D.C. No. CIV-96-1240-C)
STEPHEN W. KAISER, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, 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. Therefore, the case is
ordered submitted without oral argument.
Petitioner Marvin L. Hardin, appearing pro se and proceeding in forma
pauperis, requests a certificate of appealability to appeal the district court's denial
*
This order and judgment is not binding precedent, except under the doctrines of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.
of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We conclude
Hardin is not entitled to a certificate of appealability and dismiss the appeal.
Hardin was convicted by a jury on February 22, 1993, of kidnapping after
former conviction of two or more felonies, and assault and battery. He was
sentenced to twenty years' imprisonment on the kidnapping charge and thirty days'
imprisonment in county jail on the assault and battery charge. Hardin filed a
direct appeal claiming he was denied a fair trial because of the admission of
evidence of other crimes and prosecutorial misconduct. His conviction and
sentence were affirmed by the Oklahoma Court of Criminal Appeals on June 29,
1995. Hardin then filed an application for post-conviction relief claiming he was
denied effective trial and appellate counsel, which was denied and the denial was
affirmed by the Oklahoma Court of Criminal Appeals.
Having exhausted his state remedies, Hardin filed a petition for writ of
habeas corpus in federal district court, asserting all claims previously raised in
state court. In recommending denial of the petition, a magistrate judge outlined
the evidence presented at trial and concluded it was sufficient to support the jury's
verdict. The magistrate rejected Hardin's assertion that he was prejudiced by
improper remarks by the prosecutor during closing arguments, and concluded
evidence of Hardin's alleged "pimping" activity was properly admitted as relevant
for purposes of attacking his credibility. The magistrate also rejected his claims
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of ineffective assistance of counsel, in particular Hardin's assertion that his trial
counsel opened the door to evidence of prior convictions and failed to request a
jury instruction regarding evidence of other crimes, and his assertion that
appellate counsel failed to challenge the sufficiency of the evidence and failed to
raise the ineffective assistance of trial counsel. The magistrate concluded Hardin
was provided with reasonable professional assistance at both the trial and
appellate stages and was not prejudiced by any of the alleged errors.
Hardin filed objections to the magistrate's recommendation. The district
court adopted the report and recommendation in full. The court noted Hardin had
raised an issue in his objection that was not addressed by the magistrate, i.e., that
the Oklahoma kidnapping statute under which he was charged (21 Okla. Stat.
1991, §741) required the prosecution to demonstrate that the forcible taking of the
victim was either without "domestic authority" or was a fraudulent inducement of
consent to confinement. After reviewing the statute at issue, the court rejected
this argument as contrary to Oklahoma case law and common sense, and
concluded the evidence presented at trial was sufficient to support Hardin's
conviction under the statute. The court denied Hardin's petition for habeas corpus
and, after he filed his notice of appeal, the court denied Hardin a certificate of
appealability.
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The standard for granting a certificate of appealability under the
Antiterrorism and Effective Death Penalty Act is the same as the standard set out
by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880 (1983). See Lennox v.
Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied 117 S. Ct. 746 (1997).
Under the Barefoot standard, a certificate will issue only where the petitioner has
demonstrated the issues raised are debatable among jurists of reason, a court
could resolve the issues differently, or the questions presented are deserving of
further proceedings. See Barefoot, 463 U.S. at 893 n.4. The question here is
whether Hardin can meet this burden. For substantially the same reasons set forth
in the magistrate's recommendation of September 19, 1996, and the district court's
order of October 23, 1996, we agree with the district court that Hardin cannot
satisfy this burden and is not entitled to a certificate of appealability.
Hardin's application for a certificate of appealability is DENIED and this
appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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