F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M IC HAEL EUGENE LAM B, SR.,
Petitioner - A ppellant,
v. No. 06-6222
(D. Ct. No. 06-CV-45-W )
OKLAHO M A COUN TY DISTRICT (W .D. Okla.)
C OU RT; STA TE O F O K LA H OMA,
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.
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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
M ichael Lamb, an O klahoma state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) in order to challenge the District Court’s
*
This order is not binding precedent except under the doctrines of law of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).
denial of his petition for federal habeas relief under 28 U.S.C. § 2254. W e
exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because M r. Lamb has failed
to satisfy the standards for the issuance of a CO A, we deny his request and
dismiss the matter.
I. BACKGROUND
M r. Lamb w as convicted on two counts of shooting with intent to kill under
Oklahoma law . He appealed to the Oklahoma Court of Criminal Appeals
(“OCCA”), asserting five claims: 1) the evidence presented at trial is insufficient
to sustain his convictions; 2) the trial court allowed the introduction of improper
testimony and photographs; 3) the prosecution made misstatements of law and
fact; 4) his sentence is excessive; and 5) these trial errors amount to cumulative
error. In a summary opinion, the OCCA affirmed the convictions, addressing
each of M r. Lamb’s claims on the merits. M r. Lamb then filed a petition for
habeas relief in federal district court, requesting a reversal of his convictions or a
modification of his sentence. See 28 U.S.C. § 2254. In a thorough report and
recommendation, the magistrate judge reviewed each of M r. Lamb’s claims on the
merits and recommended that the District Court deny his petition. After a de
novo review of the record, the court adopted the magistrate’s report and denied
the petition. In a subsequent order, the court also rejected M r. Lamb’s request for
a COA under 28 U.S.C. § 2253(c)(1). See Fed. R. App. P. 22(b)(1). M r. Lamb
now petitions this Court for a COA in order to challenge the District Court’s
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order denying his habeas petition.
II. D ISC USSIO N
Before a state prisoner may appeal from a final order in a § 2254 habeas
corpus proceeding, he must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). A COA
may be issued “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make that showing, M r.
Lamb m ust demonstrate “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.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), state
court decisions resolving federal constitutional claims on the merits are entitled to
deference. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (holding
that AEDPA’s “deferential treatment of state court decisions [under 28 U.S.C.
§ 2254(d)] must be incorporated into our consideration of a habeas petitioner’s
request for a COA”). Specifically, when a state court has decided a petitioner’s
claims on the merits, we may grant relief only if the decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 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)(1)–(2). M oreover, we may not hold
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that a state court has unreasonably applied federal law “simply because we
conclude in our independent judgment that the state court applied the law
erroneously or incorrectly.” Welch v. Sirmons, 451 F.3d 675, 682 (10th Cir.
2006) (quotation omitted). Rather, “we must be convinced that the [state court’s]
application [of federal law] was also objectively unreasonable.” Id. (quotation
omitted). W hen a state court issues a summary opinion, as in the case before us,
we “focus on its result rather than any reasoning.” Stevens v. Ortiz, 465 F.3d
1229, 1235 (10th Cir. 2006).
Although the O CCA did not refer to federal law in resolving each of M r.
Lamb’s claims, it applied to each claim a state standard “equally or more
favorable to [M r. Lamb] relative to the federal standard.” Harris v. Poppell, 411
F.3d 1189, 1196 (10th Cir. 2005). As a result, we treat the state court’s
adjudication of M r. Lamb’s federal constitutional claims as an adjudication on the
merits and accord its decision AEDPA deference. See id. M r. Lamb must
therefore show that reasonable jurists could debate the District Court’s
application of AEDPA deference. In other words, he must demonstrate that
reasonable jurists could debate whether the O klahoma court’s resolution of these
claims was unreasonable or contrary to clearly established federal law. See
Dockins, 374 F.3d at 937–38.
A. Sufficiency of the Evidence
M r. Lamb argues that the state presented insufficient evidence to establish
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his “intent to kill” the two victims under Oklahoma law, Okla. Stat. tit. 21,
§ 652(A ), 1 a violation of his due process rights. In a habeas proceeding, we
review the sufficiency of the evidence “in the light most favorable to the
prosecution” and ask whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). W e have recognized that “[t]his standard of review
respects the jury’s responsibility to weigh the evidence and to draw reasonable
inferences from the testimony presented at trial.” Dockins, 374 F.3d at 939
(citing Jackson, 443 U.S. at 319). In other words, it “impinges upon ‘jury’
discretion only to the extent necessary to guarantee the fundamental protection of
due process of law.” Jackson, 443 U.S. at 319.
Applying this standard, we conclude that a rational trier of fact could have
found the requisite “intent to kill” beyond a reasonable doubt. Although M r.
Lamb testified that he shot the gun to “scare” men threatening both him and his
son, the record contains sufficient evidence to satisfy the intent-to-kill element.
In fact, M r. Lamb admitted at trial that he intended to kill if necessary to defend
himself or his son. Furthermore, to the extent M r. Lamb is arguing that the state
1
The statute states: “Every person who intentionally and wrongfully shoots
another w ith or discharges any kind of firearm, with intent to kill any person . . .
shall upon conviction be guilty of a felony punishable by imprisonment in the
State Penitentiary not exceeding life.” O kla. Stat. tit. 21, § 652(A)
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failed to prove he did not act in self-defense (or in defense of his son), 2 this
argument also fails. The record contains testimony by several individuals that
supports the jury’s finding that M r. Lamb w as not acting in defense of himself or
his son. W itnesses testified, for example, that M r. Lamb shot one of the victims
in the back, that one of the victims ran away once he heard M r. Lamb had a gun,
and that neither victim had been involved in any altercation with M r. Lamb or his
son. In short, based on our review of the record, a rational fact-finder could have
found M r. Lamb guilty beyond a reasonable doubt on both counts of shooting
with intent to kill. W e therefore conclude that the O CCA’s resolution of M r.
Lamb’s evidentiary challenge was not contrary to or an unreasonable application
of federal law, 28 U.S.C. § 2254(d)(1), or an unreasonable determination of the
facts, 28 U.S.C. § 2254(d)(2). See Dockins, 374 F.3d at 939 (recognizing that this
Court has yet to decide whether sufficiency of the evidence on habeas review
presents a question of law or fact).
B. Admission of Photographs and Testimony
M r. Lamb also contends that the admission of certain photographs and parts
of the victims’ testimony was more prejudicial than probative, improperly
influencing the jury and resulting in an excessive sentence. Specifically, he
asserts that his constitutional rights were violated by the admission of two
2
Under state law, when the defendant adequately raises self-defense at
trial, the burden shifts to the state to prove the defendant did not act in self-
defense. See Howell v. State, 882 P.2d 1086, 1092 (Okla. Crim. App. 1994).
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photographs (showing one of the victims in a hospital bed) and testimony from
both victims regarding medical complications. Because he does not allege a
violation of a specific constitutional right, he is entitled to habeas relief “only if
the alleged error was so grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness that is the essence of due process.” Willingham
v. M ullin, 296 F.3d 917, 928 (10th Cir. 2002) (quotation omitted). Furthermore,
we are mindful that “[f]ederal habeas review is not available to correct state law
evidentiary errors; rather it is limited to violations of constitutional rights.”
Thornburg v. M ullin, 422 F.3d 1113, 1128–29 (10th Cir. 2005). W e therefore
review the OCCA’s determination of this claim to determine whether its decision
is a reasonable application of federal due process principles. In this context, this
Court has held that federal due process “will be satisfied only if the probative
value of [the challenged] evidence is . . . greatly outweighed by the prejudice
flowing from its admission.” Welch, 451 F.3d at 688 (quotation omitted)
(alterations in original).
The OCCA determined that the photographs were relevant to proving the
charged offense of shooting with intent to kill. In particular, the court noted that
the photographs were relevant to showing the nature, extent, and location of the
victim’s gunshot wound and that they did not show any complications arising
from the wound. Consequently, their probative value was not outweighed by their
prejudicial effect. The D istrict Court agreed that the photographs were not so
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grossly prejudicial as to infect the trial with unfairness. And we agree. As the
District Court noted, we have denied habeas relief in a factually similar case. See
Willingham, 296 F.3d at 928–29 (rejecting petitioner’s argument that victim’s
photographs entitled him to habeas relief when the OCCA had held that the
photographs w ere relevant to the intent-to-kill element of the offense); see also
Thornburg, 422 F.3d at 1128–29 (holding that OCCA’s decision affirming trial
court’s admission of “disturbing” photographs of the victim was not contrary to or
an unreasonable application of federal law ); Smallwood v. Gibson, 191 F.3d 1257,
1274–75 (10th Cir. 1999) (holding that photographs did not render proceedings
fundamentally unfair in light of their probative nature, the nature of the crime,
and evidence of the defendant’s guilt).
Similarly, the admission of testimony by both victims regarding their
medical complications did not render the trial fundamentally unfair. Again, the
OCCA concluded that the probative value of this evidence was not outweighed by
the danger of prejudice, noting the testimony’s relevance in proving that M r.
Lamb shot the victims w ith the requisite intent to kill. After review ing this
testimony, which included the victims’ accounts of complications resulting from
the gunshot wounds (namely, a “near coma” and paralysis), the D istrict Court
concluded that the admission of the testimony was not fundamentally unfair and
the OCCA’s determination was reasonable. Because the probative value of the
testimony was not greatly outweighed by any prejudicial effect, we agree that the
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OCCA’s resolution of this claim was reasonable and in accordance with federal
law. See Payne v. Tennessee, 501 U.S. 808, 819 (1991) (“[T]he assessment of
harm caused by the defendant as a result of the crime charged has understandably
been an important concern of the criminal law , both in determining the elements
of the offense and in determining the appropriate punishment.”).
Finally, to the extent M r. Lamb argues that admission of this testimony
violates O klahoma law prohibiting the admission of “victim impact evidence” in
“unenhanced, non-capital crimes,” see Perryman v. State, 990 P.2d 900, 905
(O kla. Crim. App. 1999), his argument fails. The OCCA considered this
argument and determined that the testimony did not constitute victim impact
evidence under state law. Because this is a state law question, we may not
consider it or question the OCCA’s decision. M anlove v. Tansy, 981 F.2d 473,
478 (10th Cir. 1992).
C. Prosecutorial M isconduct
M r. Lamb also seeks to challenge his convictions on the ground that the
prosecutor made misstatements regarding the law and the evidence during closing
arguments. In particular, he identifies: 1) a statement that the jury should subject
his credibility to more scrutiny than other witnesses because of his interest in the
outcome of the trial; 2) factual misstatements regarding his conduct and his
testimony; and 3) a statement implying that certain evidence had been withheld
from the jury. The OCCA considered each of these statements and concluded
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that, although the prosecutor’s comments were improper in some instances, they
did not affect the outcome of the trial. The D istrict Court held that the O CCA’s
determ ination w as a reasonable application of federal law.
Like the evidentiary claims discussed above, M r. Lamb’s claim concerning
prosecutorial misconduct is properly characterized as a due process claim:
“W here prosecutorial misconduct does not implicate a specific constitutional
right, improper remarks require reversal of a state conviction only if the remarks
so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006) (quotation
omitted). In applying this demanding standard, “not every improper or unfair
remark made by a prosecutor will amount to a federal constitutional deprivation.”
Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000); see also Darden v.
Wainwright, 477 U .S. 168, 181 (1986) (“[I]t is not enough that the prosecutors’
remarks were undesirable or even universally condemned.” (quotation omitted));
Bland, 459 F.3d at 1024 (“The ultimate question is w hether the jury was able to
fairly judge the evidence in light of the prosecutors’ conduct.”). To determine
whether a prosecutor’s improper statements violate a petitioner’s due process
rights, “we examine the entire proceeding, ‘including the strength of the evidence
against the petitioner, both as to guilt at that stage of the trial and as to moral
culpability at the sentencing phase’ as well as ‘[a]ny cautionary steps— such as
instructions to the jury— offered by the court to counteract improper remarks.’”
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Id. (quoting Le v. M ullin, 311 F.3d 1002, 1013 (10th Cir. 2002)) (alteration in
original).
Although our review of the record confirms that the prosecutor made
improper remarks, the remarks do not rise to the level of a due process violation.
The trial court immediately corrected any misstatements regarding M r. Lamb’s
credibility and evidence not before the jury. See Boyde v. California, 494 U.S.
370, 384 (1990) (“Arguments of counsel which misstate the law are subject to
objection and to correction by the court.”). M oreover, the evidence of M r.
Lamb’s guilt was substantial, and the jury was instructed to consider only witness
testimony, attorneys’ stipulations, and exhibits as evidence. See Bland, 459 F.3d
at 1015 (“The jury is presumed to follow its instructions, even when there has
been misleading argument.” (internal citation omitted)). In light of the substantial
evidence and the jury instructions, the prosecutor’s misstatements concerning the
evidence did not render the trial fundamentally unfair. See M alicoat v. M ullin,
426 F.3d 1241, 1256 (10th Cir. 2005) (concluding that improper statements by
prosecutor did not violate defendant’s due process rights in light of “the strength
of the state’s case and the fact that the majority of the prosecutor’s argument was
based upon evidence in the record”); Hooper v. M ullin, 314 F.3d 1162, 1173 (10th
Cir. 2002) (concluding that prosecutor’s improper comments regarding the
evidence did not violate due process when the evidence was substantial and the
trial court instructed the jury to base its decision only on the evidence).
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Considering the prosecutor’s statements in the context of the entire
proceeding, we therefore conclude that they did not compromise the jury’s ability
“to fairly judge the evidence in light of the prosecutor’s conduct.” Bland, 459
F.3d at 1024. Reasonable jurists could not debate that the OCCA’s determination
that none of the prosecutor’s remarks could have influenced the jury’s verdict was
a reasonable application of federal law. Smallwood, 191 F.3d at 1276 (holding
that state court’s decision was reasonable when “none of the prosecutor’s
comments were of sufficient magnitude to influence the jury’s decision”).
D. Excessive Sentence
M r. Lamb also claims his concurrent sentences of 18 and 22 years are
excessive and therefore violate the Eighth Amendment’s Cruel and Unusual
Punishments Clause. To determine whether a sentence violates the Eighth
Amendment, we must determine whether the sentence is grossly disproportionate
to the crime committed. See United States v. Gurule, 461 F.3d 1238, 1247 (10th
Cir. 2006). In making this determination, we consider various factors, including
the seriousness of the crime, the fit between the sentence and the crime, and the
legislative determination of the appropriate sentence range. Hawkins v. Hargett,
200 F.3d 1279, 1284–85 (10th Cir. 1999). The O CCA determined that M r.
Lamb’s sentence is well within the state statutory range for a single conviction of
shooting with intent to kill. Given this determination and the seriousness of M r.
Lamb’s crimes, the concurrent sentences are clearly proportionate to his crimes.
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W e therefore conclude that the OCCA’s resolution of this claim was reasonable.
E. Cumulative Error
Lastly, M r. Lamb claims he is entitled to habeas relief on the basis of
cumulative error. M r. Lamb notes that both the OCCA and the D istrict Court
identified specific “errors” made by the prosecutor at trial. As we explain above,
although the prosecutor made improper remarks, these remarks do not rise to the
level of constitutional errors. Consequently, because M r. Lamb has not
established a single constitutional error, he cannot logically argue that the
aggregate of two or more constitutional errors entitles him to relief. See Parker v.
Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (“Because we find no single
constitutional error, we also must reject [the petitioner’s] argument that
cumulative error resulted.”); Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir.
1999) (noting that a cumulative error argument “does not merit review given the
lack of any discernible constitutional error”). Hence, we conclude that the
OCCA’s resolution of this claim was reasonable as w ell.
C ON CLU SIO N
Because we conclude that reasonable jurists would agree with the District
Court’s disposition of this matter, we deny M r. Lamb’s request for a COA and
dismiss his appeal. In addition, because M r. Lamb has not advanced “a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal,” M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997),
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we likewise deny M r. Lamb’s request for permission to proceed on appeal in
form a pauperis.
ENTERED FOR TH E CO UR T,
Deanell Reece Tacha
Circuit Judge
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