Smith v. Dinwiddie

FILED
United States Court of Appeals
Tenth Circuit

December 12, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KIP ANTONIO SMITH,

Petitioner-Appellant,
v. No. 06-5116
WALTER N. DINWIDDIE, Warden,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-02-601-CVE)

Fred Randolph Lynn, Tulsa, Oklahoma, for Petitioner-Appellant.

Theodore M. Peeper, Assistant Attorney General, Office of the Attorney General
of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This habeas petition presents an unusual question of collateral estoppel. In

2000, Kip Antonio Smith was convicted of sexual abuse of a minor child. But

only fourteen months earlier, in a civil deprived-child action, a jury had rejected

the state’s allegations that he had sexually abused a child in a manner that was
shocking and heinous or which caused severe harm or injury. In his state appeal,

Smith unsuccessfully argued that the jury’s findings in the earlier civil proceeding

precluded a contrary finding in his criminal case. See Smith v. Oklahoma, 46 P.3d

136, 137 (Okla. Crim. App. 2002).

Smith petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254.

The district court denied Smith’s petition, finding that the decision of the

Oklahoma Court of Criminal Appeals (OCCA) in the state appellate proceedings

was not contrary to, or an unreasonable application of, clearly established federal

law.

We agree and therefore affirm the district court’s denial of Smith’s

application for a writ of habeas corpus.

I. Background

On November 30, 1998, the State of Oklahoma filed a petition to terminate

Kip Smith’s parental rights over his two daughters, E.S. and K.S., following

allegations he had sexually molested their half-sisters, B.J. and A.H. At the time,

Smith was divorced from E.S. and K.S.’s mother, but had retained custody.

Under Oklahoma law, deprived-child/termination proceedings are designed

to establish the status of children and their parents. In particular, the proceedings

answer whether a child is deprived and whether the parents should retain the right

to care for them. Oklahoma defines a “deprived child” as (1) “destitute, homeless

or abandoned”; (2) lacking “proper parental care or guardianship”; or (3) living in

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an unfit place “by reason of neglect, cruelty, or depravity.” Okla. Stat. tit. 10,

§ 7001-1.3(a), (b). If the child is found to be deprived and an aggravating factor

is present, parental rights may be terminated. Id., § 7006-1.1(A). One

aggravating factor is a finding the parent has physically or sexually abused the

child or the child’s sibling in a manner “that is heinous or shocking to the court”

or that caused “severe harm or injury” to the child. Id., § 7006-1.1(A)(10).

The deprived-child/termination action against Smith went to trial in

juvenile court on January 19, 1999. The state called five witnesses: B.J., A.H., a

police detective, a social worker, and a nurse practitioner. The thrust of the

state’s case was Smith had sexually abused B.J. and A.H. while they were under

his care. The state sought a jury verdict that E.S. and K.S. were deprived children

and should be removed from Smith’s custody. Smith testified in his defense,

claiming B.J. had previously alleged he abused her, only to later recant. He also

said he thought B.J. had been coached to give certain testimony by her mother,

Smith’s ex-wife.

During deliberations, the jury sent two hand-written notes to the judge.

The first asked, “If we feel that [B.J.] was abused, but not by Kip Smith, should

we still consider that [E.S. and K.S.] are deprived since Kip Smith has no control

over [B.J.]?” Transcript of Proceedings, Case No. JVD-98-254 (Dist. Ct. Tulsa

Co. Jan. 21, 1999). The court told the jury to refer to the instructions it had

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already issued. 1 The jury’s second note to the judge read, “We are close. Please

reaffirm the following. If we say the children are deprived, are we in any way

implicating Kip Smith in sexual abuse and altering his parental rights? Or are we

only moving on to possibly more evidence regarding his actual actions?” Id. The

court responded to this note by again referring the jury to the instructions.

The jury then returned a general verdict finding that E.S. and K.S. were

deprived. But the jury also answered “no” to four special interrogatories

regarding sexual abuse. 2 Since the jury found Smith’s conduct did not match the

1
Jury Instruction No. 2 stated:

“[Y]ou are specifically instructed that the questions for the jury to determine are
as follows:
1) Whether or not the child(ren) are ‘deprived’; and/or
2) Whether or not the parent physically and/or sexually abused the
child(ren), or a sibling, in a manner that is ‘shocking and heinous’ or that
caused severe harm or injury; or
3) Whether or not the parent failed to protect the child(ren), or a sibling,
from physical and/or sexual abuse that is ‘shocking and heinous’ or caused
severe harm or injury.
The term ‘shocking and heinous’ is defined as being extremely wicked or evil, or
designed to inflict a high degree of pain or suffering, or utter indifference to or
enjoyment of the suffering of others.” R., Case No. 06-5116 (10th Cir.), at 28.

Jury Instruction No. 1 stated that the term “deprived child” means “any person
under eighteen (18) years of age who has not the proper parental care or
guardianship; or who is for any reason destitute, homeless or abandoned; or
whose home, by reason of neglect, cruelty or depravity on the part of the parents,
guardian or other person in whose care it may be, is an unfit place for such child.”
Id. at 27.
2
The special interrogatory form, with the jury’s answers, reads as follows:

(continued...)

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allegations in the interrogatories (despite a general verdict that the children were

deprived), the court did not reach the issue of whether Smith’s parental rights

should be immediately terminated. As the court explained to the jury:

Ladies and gentlemen of the jury, you reached a verdict finding that the
two minor children in this case were deprived children. You, also,
came to the conclusion that based on the evidence presented at trial,
that they were not deprived based on sexual or physical abuse of a
shocking and heinous nature. That is one of the requirements under the
law in order for the State of Oklahoma to proceed with immediate
termination, which would have been the second part of this trial. Based
on your answers to those questions, the State of Oklahoma is not going
to be able to proceed with immediate termination.

Transcript of Proceedings, Case No. JVD-98-254 (Dist. Ct. Tulsa Co. Jan. 21,

1999). Nevertheless, the deprived-child finding allowed the court to terminate, at

a later time, Smith’s parental rights if the court subsequently found termination

was in the best interests of the children. Ultimately, the court made this

determination and awarded sole custody of E.S. and K.S. to their natural mother.

2
(...continued)
“We further find the following to exist (the Jury may find all to exist, one or more
to exist, or that none exist. The Jury does not have to find one of the following in
order to find this child to be deprived):

1) Has the natural father sexually abused a child or a sibling in a manner
that is shocking and heinous; or Answer: No
2) Has the natural father sexually abused a child or a sibling in a manner
which caused severe harm or injury to said child; or Answer: No
3) Has the natural father failed to protect this child or a sibling from
sexual abuse that is shocking and heinous; or Answer: No
4) Has the natural father failed to protect this child or a sibling from
sexual abuse which caused severe harm or injury to said child? Answer: No.”
R., Case No. 06-5116 (10th Cir.), at 39.

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 While this deprived-child/termination civil action was pending, prosecutors

charged Smith with criminal child sexual abuse of B.J. in violation of Okla. Stat.

tit. 10, § 7115. 3 Several months later, after the deprived-child action had

concluded, the state was ready to begin the criminal trial. Smith moved to

dismiss the charges against him based on the doctrine of collateral estoppel. He

argued the civil court jury had found he did not sexually abuse B.J. and,

therefore, the state was barred from proceeding with its criminal case.

The criminal court denied the motion, concluding that the ultimate facts in

the deprived-child/termination case were different than those in the criminal case.

In the criminal proceeding, the state was not required to prove Smith sexually

abused B.J. in a manner that was shocking and heinous or that caused her severe

harm or injury, as had been the case in the deprivation action. Rather, it had to

prove only that Smith had sexually abused B.J.—without further proof of

aggravating factors. A jury trial began on March 6, 2000, and Smith was

convicted and sentenced to 15-years imprisonment.

Smith appealed his sentence directly to the OCCA. In rejecting his

collateral estoppel argument, the OCCA agreed with the trial court that the two

3
That provision defines “child sexual abuse” as “willful or malicious
sexual abuse” of a child under eighteen years of age, where sexual abuse
“includes, but is not limited to, rape, incest and lewd or indecent acts or proposals
made to a child, as defined by law, by a person responsible for the child’s health,
safety or welfare.” Okla. Stat. tit. 10, §§ 7115(E) and 7102(B), ¶6.

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proceedings sought to prove different ultimate facts. Smith, 46 P.3d at 137–38.

The OCCA determined the special interrogatories permitted a finding that Smith

had sexually abused B.J. in a manner that was not shocking and heinous and did

not cause severe harm or injury to the child. Id. at 138. One judge dissented,

arguing every act of child sexual abuse was heinous and shocking and necessarily

caused severe harm or injury. Id. at 139.

Smith petitioned for habeas relief under 28 U.S.C. § 2254. Although the

federal district court initially denied his petition, we granted a certificate of

appealability. Smith v. Beck, 130 F. App’x 244, 245 (10th Cir. 2005). We

remanded the case for a complete review of the record in light of the collateral

estoppel principles set forth in Ashe v. Swenson, 397 U.S. 436 (1970). Id. at 246.

On remand, the district court once again denied relief. Smith v. Dinwiddie, No.

02-601, 2006 WL 1666184, at *9 (N.D. Okla. June 8, 2006). The district court

found the OCCA had properly applied the doctrine of collateral estoppel and the

ruling was not contrary to, or an unreasonable application of, clearly established

federal law.

II. Analysis

A. Standard of Review

We have jurisdiction to “entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the Constitution or laws or

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treaties of the United States.” 28 U.S.C. § 2254(a). Relief is permissible only if

the state court decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). See generally Maynard v. Boone, 468

F.3d 665 (10th Cir. 2006).

For a decision to be contrary to clearly established federal law,

[A] petitioner could show that the state court applies a rule that
contradicts the governing law set forth in Supreme Court cases or that
the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from [their] precedent.

Maynard, 468 F.3d at 669 (internal quotation marks and alterations omitted). For

a decision to involve an unreasonable application of clearly established federal

law, a petitioner must show the state court’s application of federal law was

“objectively unreasonable,” which means “most reasonable jurists exercising their

independent judgment would conclude the state court misapplied Supreme Court

law.” Id. at 671. “It is not enough that the decision is clearly wrong or that the

reviewing court would have reached a contrary decision. . . . [T]he state court

decision must be at such tension with governing U.S. Supreme Court precedents,

or so inadequately supported by the record, or so arbitrary as to be unreasonable.”

Id. (internal quotation marks omitted).

The only federal law that can be clearly established for purposes of Smith’s

§ 2254(d) appeal is Supreme Court precedent interpreting the Constitution. We

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may not rely upon non-constitutional Supreme Court decisions to determine

whether § 2254(d) relief is appropriate. Precedents not based on constitutional

grounds are “off the table as far as § 2254(d) is concerned.” Early v. Packer, 537

U.S. 3, 10 (2002) (per curiam). Nor may we look to circuit court decisions or

Supreme Court decisions interpreting federal common law. See id. (holding

inapplicable precedents “based on [the Court’s] supervisory power over the

federal courts, and not on constitutional grounds”).

With this standard of review in mind, we turn to Supreme Court case law

applicable to Smith’s collateral estoppel claim.

B. Supreme Court Framework

This case requires us to examine the related concepts of collateral estoppel

and double jeopardy. The Fifth Amendment’s Double Jeopardy Clause prevents

the government from trying the same person twice for the same offense. 4 The

Clause embodies two broad principles: protection against a second prosecution for

the same offense (whether after acquittal or conviction) and protection from

multiple punishments for the same crime. See Illinois v. Vitale, 447 U.S. 410,

415 (1980). Relatedly, collateral estoppel prevents a party from relitigating an

issue that has already been decided. Although better known as a civil law

concept, collateral estoppel also applies in criminal cases. See, e.g., United States

4
The Double Jeopardy Clause provides, “[N]or shall any person be subject
for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. 5, cl. 2.

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v. Oppenheimer, 242 U.S. 85, 87 (1916). In the criminal context, the doctrine of

collateral estoppel serves to: (1) reduce chances of wrongful conviction after an

acquittal, (2) strengthen notions of finality, (3) preserve judicial resources, and

(4) restrain overzealous prosecutors. See Note, The Due Process Roots of

Criminal Collateral Estoppel, 109 Harv. L. Rev. 1729, 1732 (1996).

The Supreme Court has clearly established that the doctrine of collateral

estoppel applies in state criminal cases via the Fifth and Fourteenth Amendments.

The doctrine is embodied in the Fifth Amendment’s Double Jeopardy Clause,

which has been incorporated against the states via the Fourteenth Amendment.

Ashe v. Swenson, 397 U.S. 436, 445 (1970). “Ashe thus makes it clear that

collateral estoppel applies insofar as it is necessary to safeguard against the risk

of double jeopardy . . . .” Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir.

1987); see also Wayne R. LaFave et al., Criminal Procedure § 17.4(a) (2d ed.

1999) (noting “an Ashe collateral estoppel claim . . . is grounded in the double

jeopardy clause” and only applies where the earlier proceedings were “undertaken

for the purpose of imposing . . . punishment”). Thus, state courts are

constitutionally required to apply principles of collateral estoppel in criminal

cases if and only if the protections of the Double Jeopardy Clause have been

triggered.

As relevant here, the Double Jeopardy Clause’s protections are triggered by

the imposition of multiple criminal penalties for the same underlying conduct.

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The Clause does not prohibit the imposition of every sanction that might be

described as punishment. Rather, it “protects only against the imposition of

multiple criminal punishments for the same offense.” Hudson v. United States,

522 U.S. 93, 99 (1997). To be in jeopardy, a defendant must face “the risk that is

traditionally associated with a criminal prosecution” and “then only when such

occurs in successive proceedings.” Id.; see also Breed v. Jones, 421 U.S. 519,

528 (1975) (holding that double jeopardy does not apply unless the punishment is

“essentially criminal” (emphasis added)).

A civil remedy may constitute punishment for Double Jeopardy purposes

where the remedy is so punitive we deem it criminal in nature. See Hudson, 522

U.S. at 99. In evaluating the nature of a civil sanction, the Supreme Court

instructs us to look to the plain language of the statute at issue in light of a

variety of factors:

(1) [w]hether the sanction involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment; (3)
whether it comes into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punishment—retribution
and deterrence; (5) whether the behavior to which it applies is already
a crime; (6) whether an alternative purpose to which it may rationally
be connected is assignable for it; and (7) whether it appears excessive
in relation to the alternative purpose assigned.

Id. at 99–100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69

(1963)). The Court has cautioned these factors “must be considered in relation to

the statute on its face,” and “only the clearest proof” will suffice to override

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legislative intent and transform a seemingly civil remedy into a criminal penalty.

Id. at 100 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)). These

principles have been reaffirmed in a number of subsequent cases. See, e.g., Smith

v. Doe, 538 U.S. 84, 92–106 (2003) (evaluating the civil remedy through

legislative intent and the Mendoza-Martinez factors); Seling v. Young, 531 U.S.

250, 262–65 (2001) (reaffirming the two-step process of considering legislative

intent, followed by the Mendoza-Martinez factors).

If the Double Jeopardy Clause is triggered by state court proceedings, we

then look to Ashe and its progeny to determine the precise contours of the

collateral estoppel principle. Under Ashe, “when an issue of ultimate fact has

once been determined by a valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit.” 397 U.S. at 443. This

principle bars only the relitigation of “ultimate issues” decided in a prior

criminal proceeding. Collateral estoppel will not apply, therefore, if a rational

jury could have based its verdict upon an issue not decided in the prior case. See

Schiro v. Farley, 510 U.S. 222, 232 (1994). Nor will collateral estoppel extend as

far as “to exclude relevant and probative evidence . . . simply because it relates to

alleged criminal conduct for which a defendant has been acquitted.” Dowling v.

United States, 493 U.S. 342, 348 (1990).

Collateral estoppel bars the adjudication of a particular claim in a

subsequent proceeding when four elements are met. Those elements are: (1) the

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issue previously decided is identical with the one presented in the action in

question; (2) the prior action has been finally adjudicated on the merits; (3) the

party against whom the doctrine is invoked was a party, or in privity with a party,

to the prior adjudication; and (4) the party against whom the doctrine is raised

had a full and fair opportunity to litigate the issue in the prior action. E.g.,

Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001).

Interpreting the Supreme Court’s relevant constitutional precedents, then,

the doctrine of collateral estoppel applies in state criminal proceedings only if the

Double Jeopardy Clause is triggered by an earlier proceeding. For an issue to be

barred from relitigation under the doctrine, the petitioner must show the four

elements of the collateral estoppel test have been satisfied.

C. Application

To determine whether Smith is entitled to relief under this legal framework,

we must ask two questions. First, whether the OCCA was required because of the

Double Jeopardy Clause to apply the collateral estoppel doctrine in Smith’s

criminal sexual abuse case. This requires an analysis of whether the sanction

imposed upon Smith in the earlier proceeding was civil or criminal. Second,

assuming application of collateral estoppel was mandated, we examine whether

the prior jury decided an ultimate fact precluding the subsequent criminal

proceeding. This analysis depends on a review of the ultimate facts determined

by each jury.

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 1. Civil Versus Criminal

The OCCA was not required to apply Ashe’s collateral estoppel doctrine in

this case. The deprived-child proceedings against Smith were civil in nature, and

thus he has not suffered successive criminal punishments. We reach this

conclusion by first interpreting the relevant portions of the Oklahoma Children’s

Code (Okla. Stat. tit. 10, § 7001-1.1, et seq.) and then applying the seven

Mendoza-Martinez factors.

To determine whether the state subjected Smith to a criminal punishment in

the earlier proceeding, we look initially to the Oklahoma statutory scheme. “A

court must first ask whether the legislature, ‘in establishing the penalizing

mechanism, indicated either expressly or impliedly a preference for one label or

the other.’” Hudson, 522 U.S. at 99 (quoting Ward, 448 U.S. at 248). Oklahoma

has clearly chosen the civil label. The Oklahoma legislature devoted special

provisions of the Oklahoma children’s code to deprived-child/termination

proceedings. These provisions are distinct from the criminal sexual abuse

provisions. Compare Okla. Stat. tit. 10, § 7006-1.1 (termination of parental

rights) with Okla. Stat. tit. 10, § 7115 (malicious child sexual abuse); see also

Okla. Stat. tit. 21, § 1123(A) (sexual abuse of child under sixteen or believed to

be under sixteen). The focus of neglect proceedings is to quickly resolve the

placement of children, not to determine the ultimate guilt or responsibility of

particular custodians. See In re H.J., 854 P.2d 381, 383 (Okla. Civ. App. 1993)

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(“[T]he entire philosophical rubric permeating the Juvenile Act relates to

promoting the welfare of children—not the infliction of punishment.”). The

Oklahoma legislature has made clear, “The paramount consideration in

proceedings concerning termination of parental rights shall be the health, safety

or welfare and best interests of the child.” Okla. Stat. tit. 10, § 7006-1.1(A). The

state’s burden of proof is “clear and convincing” evidence, and appeals from

juvenile proceedings are heard by the Oklahoma Court of Civil Appeals, not the

Oklahoma Court of Criminal Appeals. Thus, the Oklahoma legislature has

expressed a plain preference for considering deprived-child/termination cases as

civil.

The seven Mendoza-Martinez factors further support a finding that the

termination proceedings are civil in nature. Although the sanction of losing

parental rights “involves an affirmative disability or restraint,” none of the other

factors point in the direction of criminality. A child may be deemed deprived and

parental rights may be terminated without a “finding of scienter”; the proceedings

are not designed to “promote the traditional aims of punishment”; the behavior to

which the proceedings apply is not necessarily “already a crime”; and the penalty

does not “appear[] excessive in relation to the alternative purpose assigned.” See

Hudson, 522 U.S. at 99–100; Ives v. Boone, 101 F. App’x 274, 290–91 (10th Cir.

2004). Again, the focus of the deprived-child/termination hearing is whether

custody should remain with a parent or guardian. While criminal behavior may

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be examined in making this determination, Oklahoma law establishes different

standards and procedures in resolving parental rights than it does in creating

criminal liability for child abuse. As Oklahoma courts have recognized,

“[t]ermination of parental rights cases, despite the high liberty interest at stake,

are civil in nature.” In re K.L.C., 12 P.3d 478, 480 (Okla. Civ. App. 2000); see

also In re K.W., 10 P.3d 244, 245–46 (Okla. Civ. App. 2000) (treating a deprived

child hearing as a civil case); Ives, 101 F. App’x at 290 (finding Oklahoma courts

consider deprivation hearings civil in nature).

Based on the relevant statutory language and the seven Mendoza-Martinez

factors, we cannot conclude “the statutory scheme is so punitive either in purpose

or effect as to transform what was clearly intended as a civil remedy into a

criminal penalty.” Simpson v. Bouker, 249 F.3d 1204, 1212 (10th Cir. 2001)

(quoting Hudson, 522 U.S. at 99); see also Showery, 814 F.2d at 203–04 (holding

that Ashe does not constitutionally compel application of collateral estoppel from

parol revocation hearings resulting in imprisonment, which are civil in nature).

Because Smith’s first trial was not criminal in nature, the Double Jeopardy Clause

is not triggered and his reliance on Ashe is without merit.

Smith’s reliance on Bowling v. State, 470 A.2d 797 (Md. 1984), is similarly

misplaced. On facts similar to those in this case, the Maryland Court of Appeals

held that the doctrine of collateral estoppel prevented the state from criminally

prosecuting an individual on charges of sexual assault after the state had failed, in

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an earlier child-custody proceeding, to show sexual abuse had occurred. Bowling,

470 A.2d at 800–02. Our assessment of the relevant case law looks, of course,

only to the United States Supreme Court. Early, 537 U.S. at 10. But in any

event, Bowling provides Smith no more help than Ashe. While applying the

doctrine of collateral estoppel from the earlier civil proceeding to the criminal

proceeding as a matter of state law, the court ignored the constitutional nuance of

the collateral estoppel doctrine. A state can certainly choose—as a matter of state

law—to broadly apply collateral estoppel to criminal proceedings. But Supreme

Court precedent does not require it to do so under federal law. The Supreme

Court’s cases apply collateral estoppel as an aspect of the Double Jeopardy

Clause, which is triggered only by successive criminal penalties.

The OCCA’s decision to uphold Smith’s criminal sentence thus was not

contrary to, nor an unreasonable application of, clearly established federal law.

2. Collateral Estoppel

Even if the OCCA were constitutionally required to apply the doctrine of

collateral estoppel in this case, Smith would still not prevail. For although the

OCCA was not required to determine whether Smith’s criminal prosecution was

barred under Ashe v. Swenson, it nevertheless chose to do so. See Smith, 46 P.3d

at 137–38. Applying the elements of collateral estoppel as announced in Ashe,

the OCCA found the deprived child proceedings did not bar the subsequent

criminal action. Id.

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 The OCCA determined the issues adjudicated in the civil case were not

“identical with” those adjudicated in the criminal case. Id. at 138. The court

concluded the verdict in the deprived-child/termination proceeding sufficiently

differed from the verdict in the criminal trial. The civil jury examined whether

Smith had committed sexual abuse with aggravating factors—i.e., sexual abuse

that was shocking and heinous or seriously harmful to the child. Id.; see also Jury

Instr. No. 2, supra, n.1. The criminal statute Smith was convicted under, Okla.

Stat. tit. 10, § 7115, did not require the criminal jury to find any aggravating

factors. Thus, the OCCA found Oklahoma law distinguishes heinous and

shocking or severely harmful or injury-causing sexual abuse of a child from other

kinds of child sexual abuse.

We may not necessarily agree with the OCCA’s conclusion that the two

jury findings were distinct. Nevertheless, “[w]e are bound to accept the state

court’s construction of that State’s statutes.” Parker v. Scott, 394 F.3d 1302,

1319 (10th Cir. 2005) (quoting Missouri v. Hunter, 459 U.S. 359, 368 (1983)). A

state court’s “interpretation of the state . . . statute is a matter of state law binding

on this court” in habeas proceedings. Id. On the record before us, we cannot

conclude the OCCA’s interpretation of state law in applying collateral estoppel to

Smith’s criminal proceeding was so objectively unreasonable as to be contrary to,

or an unreasonable application of, governing Supreme Court precedent as required

by 28 U.S.C. § 2254(d)(1).

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 Accordingly, the district court did not err in denying habeas relief.

III. Conclusion

For the reasons set forth above, the district court’s denial of Smith’s

application for a writ of habeas corpus is AFFIRMED.

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