F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 4, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A SA S. FO REM A N ,
Petitioner-A ppellant, No. 06-5186
v. (N .D. of Okla.)
ERIC FRANKLIN, W arden, (D.C. No. CV-02-770-TCK)
Respondent-Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **
Asa Foreman seeks a certificate of appealability (“COA”) to appeal the
district court's denial of his petition for federal habeas corpus relief under 18
U.S.C. § 2254. For substantially the same reasons as the district court, we deny
his request and dismiss this appeal.
*
This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
**
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.
I. Background
This case arises out of a robbery of a Texaco convenience store in Tulsa,
Oklahoma on O ctober 25, 1999. Just after 6:00 a.m., a man, later identified as
Foreman, wearing a ski mask and gloves and carrying a butcher knife ordered the
store clerk to open the safe and hand over the money. Though he did not
physically harm her, Foreman used the knife to threaten the clerk, after which he
ran from the store. A customer who had been in the store earlier, Roderick
Sanders, saw Foreman running down the street with the mask and sack in hand
and tackled him from behind. Foreman struck Sanders in the temple with the
knife during the scuffle. W ith the help of two other men, Sanders subdued
Foreman until police arrived.
Police arrested Foreman at the scene and recovered a ski mask, gloves, a
butcher knife, and a canvas bag containing $8,627.40. Before being taken to the
police station, the Texaco clerk positively identified Foreman as the man that
robbed the store. At the station, Foreman w rote and signed a confession
admitting the robbery.
Foreman w as convicted by a jury on three counts: robbery with a dangerous
weapon, assault with a dangerous weapon while masked, and assault and battery
with a dangerous weapon. He was sentenced to three consecutive terms totaling
fifty-five years of imprisonment. His conviction was affirmed on direct appeal,
after which he filed this petition for federal habeas corpus.
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In his § 2254 petition, Foreman alleges the same three issues he raised on
direct appeal: (1) his convictions for both robbery with a dangerous weapon and
assault with a dangerous w eapon while masked violate an Oklahoma statute
prohibiting more than one punishment for the same offense; (2) prosecutorial
misconduct requires a new trial or modification of his sentences; and (3) the trial
court erred in refusing his requested jury instructions regarding lesser included
offenses. The district court denied his petition and Foreman appeals.
II. Discussion
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA ), when
a petitioner’s claims have already been adjudicated in state court, the petitioner
may only obtain federal habeas relief if the state decision is “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). See also W illiam s
v. Taylor, 529 U.S. 362, 402 (2000); M aynard v. Boone, 468 F.3d 665, 669 (10th
Cir. 2006). Since the Oklahoma Court of Criminal Appeals (OCCA) has already
adjudicated each of Foreman's claims on direct appeal, we apply this standard
from § 2254(d).
Foreman’s first claim is that his convictions for assault with a dangerous
weapon while masked and robbery with a dangerous weapon— both arising out of
his confrontation with the Texaco store clerk— violate the prohibition on multiple
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punishments found at Okla. Stat. tit. 21, § 11. The district court was correct that
this is not a cognizable claim for federal habeas relief because we lack authority
to review a state court’s interpretation of its own laws. Estelle v. M cGuire, 502
U.S. 62, 67–68 (1991). Instead, our role is limited to deciding whether a
conviction violated the Constitution or laws of the United States. 28 U.S.C.
§ 2254(a).
To the extent that Foreman’s claim can be construed as stating a violation
of the federal constitutional prohibition on double jeopardy, we agree Foreman is
not entitled to relief on that basis. W hether punishments are considered
“multiple” for purposes of double jeopardy is a question of legislative intent.
Ohio v. Johnson, 467 U.S. 493, 499 (1984). But in situations like this one w here
legislative intent is unclear, we apply the Blockburger test: “where the same act
or transaction constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). Assault with a dangerous w eapon while
masked and robbery with a dangerous weapon, clearly require proof of distinct
elements— the latter requires something to be stolen. Thus, the dual conviction
does not violate double jeopardy.
Foreman's second claim likewise fails under our precedents. He argues
prosecutorial misconduct warrants a reversal for a new trial or a modification of
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his sentences. The OCCA found that six of eight allegedly improper comments
by the prosecutor w ere not objected to at trial and did not constitute plain error.
W ith respect to the remaining two, the OCCA determined that one caused merely
harmless error while any error caused by the second was cured on subsequent
questioning. Petitioners are entitled to habeas corpus relief for prosecutorial
misconduct only if the misconduct is so extreme that it renders the entire trial
fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642–48 (1974);
Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998). Because we agree any
alleged m isconduct in this case did not result in a violation of due process, we
affirm the district court’s rejection of Foreman’s second claim.
Finally, we also reject Foreman’s third claim, alleging the trial court
committed reversible error by denying his request for lesser included offense jury
instructions. Under Tenth Circuit law, the failure of a state court to instruct on
lesser included offenses in a non-capital case never raises a constitutional
question. Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993). In any event, the
OCCA did not err in concluding that the instruction was not warranted based on
the evidence presented at trial.
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III. Conclusion
For the foregoing reasons, w e D ENY Foreman’s request for a COA.
Entered for the Court,
Timothy M . Tymkovich
Circuit Judge
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