F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 12 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DERMICO DEON WRIGHT,
Petitioner - Apellant,
vs. No. 01-5209
(D.C. No. 99-CV-561-C)
REGINALD HINES, Warden, (N.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-Appellant Dermico Deon Wright, an inmate appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order denying relief on his petition for a writ of habeas corpus, 28 U.S.C.
§ 2254. Because Mr. Wright has failed to make “a substantial showing of the
denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
his request and dismiss the appeal.
Mr. Wright was convicted by a jury of unlawful delivery of a controlled
drug after one previous conviction and sentenced to ten years of imprisonment.
His conviction resulted from an informant purchasing $60 worth of crack cocaine
from him at a local crack house. The informant, Angela Cullom was a convicted
felon working for the Tulsa Police Department in order to gain a dismissal of new
charges that would have resulted in substantial prison time. On direct appeal to
the Oklahoma Court of Criminal Appeals (“OCCA”), Mr. Wright raised two
claims: (1) the trial court committed reversible error in overruling Mr. Wright’s
motion for a directed verdict based on a lack of sufficient evidence, and (2) the
prosecutor improperly vouched for the State’s witness again committing
reversible error. In a summary opinion, the OCCA affirmed the judgment and
sentence.
Mr. Wright filed a petition for a writ of habeas corpus in federal district
court raising the same two claims that the OCCA denied: (1) denial of a motion
for a directed verdict was reversible error due to a lack of sufficient evidence, and
(2) the prosecutor’s remarks in closing argument were unduly prejudicial and thus
Mr. Wright was wrongly convicted. The district court considered these claims
and denied his petition.
Mr. Wright again raises the same two issues before this court on appeal.
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Both claims were presented to the OCCA and denied by that court in a summary
opinion. As such, a writ of habeas corpus may issue only if the state court
adjudication resulted in a decision that (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that 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)(1)–(2); Williams v. Taylor, 529
U.S. 362, 412–13 (2000). Further, the fact that the OCCA denied relief to Mr.
Wright in a summary opinion has no effect on the deference we owe to the state
court’s result. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).
Mr. Wright’s first claim was that denial of a motion for a directed verdict
was reversible error. According to Mr. Wright, his conviction was based on
insufficient evidence. In evaluating a sufficiency of evidence claim, the Supreme
Court held that it is not for the court to inquire whether it believes the evidence
established guilt beyond a reasonable doubt, but whether, after considering the
evidence in the light most favorable to the prosecution, a rational jury could
conclude that each element of the charged crime was proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This court has not yet
determined whether, under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), it reviews the state court’s sufficiency-of-the-evidence determination
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as a legal issue under 28 U.S.C. § 2254(d)(1), or a factual finding under §
2254(d)(2) and (e)(1). In this case we would reach the same result under either
standard. See Romano v. Gibson, 239 F.3d 1156, 1164 n.2 (10th Cir.), cert.
denied, —U.S.—, —, 122 S.Ct. 624, 628, (2001).
In addition to Ms. Cullom’s testimony about the drug purchase, both the
prosecutor and defense counsel delved into Ms. Cullom’s checkered past.
Testimony of two police officers and a chemist was introduced. Evidence of each
of the elements of the crime was presented. Mr. Wright complains that the State
did not offer any corroborating witnesses for Ms. Cullom’s testimony that he was
the one who sold the crack (e.g., the other persons who were alleged to be present
in the house when the crack was purchased). The absence of corroborating
testimony was brought to the jury’s attention by Mr. Wright’s attorney. Under
these circumstances, viewing the evidence in the light most favorable to the State,
a rational trier of fact weighing the credibility of witnesses could have found the
essential elements of the crime proven beyond a reasonable doubt. The OCCA
therefore reasonably denied Mr. Wright’s claim for relief based on insufficiency
of the evidence.
Turning to Mr. Wright’s second claim, in order to grant habeas corpus
relief for prosecutorial misconduct, the behavior must have been so egregious as
to render the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S.
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637, 642-648 (1974). In this case, the prosecutor’s alleged improper remarks
about Ms. Cullom’s credibility were only made during the rebuttal portion of
closing argument and only after defense counsel sought to put her credibility at
issue. Assuming, without deciding, that the remarks were improper, they do not
rise to a level that would render the entire trial unfair, nor would they be likely to
so bias the jury as to make it likely that a different verdict would have resulted
absent those remarks.
Because neither of Mr. Wright’s claims suffice to make a substantial
showing of a denial of a constitutional right, we DENY a COA and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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