F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
EUGENE KIRK,
Petitioner-Appellant, No. 04-6200
v. (W. District of Okla.)
REGINALD HINES, Warden, (D.C. No. CV-03-997-M)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Petitioner-Appellant Eugene Kirk, a state prisoner appearing pro se, filed a
petition for writ of habeas corpus in the district court pursuant to 28 U.S.C.
§ 2254 (2000). Upon the magistrate judge’s recommendation, the district court
denied Kirk’s writ of habeas corpus. The district court also denied Kirk a
certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (2000) (a
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order 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.
petitioner may not appeal the denial of habeas corpus relief unless he first obtains
a COA). Kirk now seeks to appeal the district court’s ruling on the same grounds
that were rejected by the district court. Because Kirk has not made a substantial
showing of the denial of a constitutional right, we deny his COA and dismiss the
appeal.
Background
Kirk was tried and convicted by a jury in Oklahoma state court on three
counts: Murder in the First Degree (Count I); Domestic Abuse After a Former
Conviction of Domestic Abuse (Count II); and Assault with a Dangerous Weapon
(Count III). Kirk received life without parole for Count I, and forty years in
prison for each of the other two counts; his sentences were to run consecutively.
Kirk then filed a direct appeal to the Oklahoma Court of Criminal Appeals
(OCCA), citing seven trial errors. The OCCA affirmed Williams’s conviction and
sentences on Counts I and III, but reversed his conviction for domestic abuse,
thus reducing Kirk’s sentence by forty years. The OCCA also found the trial court
erred when it failed to give a jury instruction regarding impeachment by prior bad
acts, but found that the error was harmless beyond a reasonable doubt.
Thereafter, Kirk filed the instant § 2254 petition, citing six grounds for
relief, all of which were part of his original appeal to and rejected by the OCCA.
First, Kirk asserted that the evidence was insufficient to convict him of Count I.
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Second, Kirk argued prosecutorial misconduct during closing arguments wherein
the prosecutor’s alleged vouching for a witness violated his Sixth, Eighth, and
Fourteenth Amendment rights. Third, Kirk claimed that the trial court
erroneously admitted “other crimes” evidence in violation of his Sixth, Eighth,
and Fourteenth Amendment rights. Fourth, Kirk argued that the court’s failure to
grant his jury instruction regarding impeachment by prior bad acts violated his
due process rights. Fifth, Kirk asserted that the court’s jury instructions placed
too much emphasis on his prior conviction. Finally, Kirk claimed that the
cumulative effect of the court’s errors violated his right to a fair trial.
Analysis
This court may only issue a COA and entertain Kirk’s appeal if he “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). See also Slack v. McDaniel , 529 U.S. 473, 484 (2000);
United States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). To make the
necessary substantial showing, “a petitioner must show 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.” Miller-El v. Cockrell , 537 U.S. 322,
336 (2003) (internal quotations omitted). Our role is not to engage in a “full
consideration of the factual or legal bases adduced in support of the claims,” but
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rather to conduct “an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. Additionally, in cases such as this where the
petitioner’s federal habeas claims were adjudicated on the merits in state court,
Congress has instructed that we may grant habeas relief only where the state court
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law” 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) (2000). We have recently held that this standard of deferential
treatment of state court decisions must be incorporated into our consideration of a
habeas petitioner’s request for a COA. See Dockins v. Hines , 374 F.3d 935, 938
(10th Cir. 2004).
In his direct appeal, the OCCA found that the jury properly convicted Kirk
of First Degree Murder and Assault with a Dangerous Weapon, but found that the
jury improperly convicted him of Domestic Abuse After a Former Conviction of
Domestic Abuse. After conducting the required overview of Kirk’s claims, and
having considered the deferential treatment accorded to state court decisions
under § 2254(d), we agree with the district court that Kirk has failed to make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000).
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The magistrate judge’s thorough examination of all six of Kirk’s claims,
with which we agree and adopt by reference, demonstrates that the district court’s
denial of Kirk’s habeas petition was not a decision that reasonable jurists could
debate.
First, it is clear, particularly in light of the limited scope of our review
under § 2254, that the evidence presented at trial was such that a “rational trier of
fact could have found the elements of [First Degree Murder] beyond a reasonable
doubt.” Romano v. Gibson , 239 F.3d 1156, 1164 (10th Cir. 2001) (internal
quotations omitted). Second, the OCCA did not err when it found that the
prosecution’s emphasis on the consistency of the witnesses’ testimony did not
constitute vouching for those witnesses. Third, no actual “other crimes” evidence
was admitted because the trial court sustained an objection to a question
regarding Kirk’s prior incidents of domestic abuse before the witness could
answer the question. What is more, the court instructed the jury to ignore the
question and any implications that could possibly be drawn from it. Fourth, the
OCCA’s finding that the trial court committed harmless error by not providing the
jury with an instruction on impeachment by prior inconsistent statements was
correct because it applied and analyzed the issue using the proper standard to
determine harmlessness. Fifth, the OCCA properly rejected Kirk’s argument that
two jury instructions concerning impeachment by former conviction unduly
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emphasized his prior conviction. Kirk did in fact have a prior conviction and the
instruction was proper. Finally, the OCCA properly evaluated the impact of the
trial court’s errors, i.e., not providing a jury instruction on impeachment by prior
bad acts and improperly convicting Kirk on Count II, because there was no
cumulative effect of the errors since there was only one harmless error.
Accordingly, we find that no reasonable jurist could disagree with the
conclusions made by the district court in its denial of Kirk’s petition for relief and
COA. Therefore, we DENY the request for a COA and DISMISS the case.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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