FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2015
Elisabeth A. Shumaker
Clerk of Court
JIMMY FOSTER,
Petitioner - Appellant,
v. No. 14-5119
(D.C. No. 4:11-CV-00503-CVE-FHM)
ANITA TRAMMELL, (N.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.
Jimmy Foster seeks a certificate of appealability (“COA”) to appeal from the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and
dismiss this proceeding.
I
Foster was accused of killing Tyri Rodgers, who died after being shot at the
Apache Manor Apartments in Tulsa, Oklahoma, on July 9, 2006. At trial, Foster
admitted shooting Rodgers. He testified that Rodgers was trying to shoot him, and so
he acted in self-defense. The physical evidence included three .40 caliber casings
*
This order is not binding precedent, except under the doctrines of law of the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 and 10th Cir. R. 32.1.
from Foster’s gun and a 9 mm casing from the area where Rodgers had been
standing. No 9 mm handgun was found, and other witnesses testified that Rodgers
had not been armed.
A jury found Foster guilty after being instructed on the elements of first degree
malice aforethought murder and self-defense. In his direct appeal, Foster challenged
the sufficiency of the evidence to support the conviction and to overcome his
assertion of self-defense. The Oklahoma Court of Criminal Appeals (“OCCA”) held
that, viewing the evidence in the light most favorable to the State, it was sufficient to
prove beyond a reasonable doubt that Foster was guilty of first degree murder
because he admitted the elements of the crime and the jury could have rationally
found beyond a reasonable doubt that he did not act in self-defense. Accordingly, the
OCCA affirmed his conviction and sentence of life imprisonment.
Foster then filed his § 2254 petition, again challenging the sufficiency of the
evidence. He conceded that the OCCA identified the correct legal principle, but he
argued that it applied that principle unreasonably to the facts of his case because the
physical evidence (primarily the 9 mm casing) required the jury to credit Foster’s
testimony. The district court disagreed, finding that the evidence, when viewed in
the light most favorable to the prosecution, was sufficient for a rational trier of fact to
have found the essential elements of the crime beyond a reasonable doubt. It denied
relief and denied a COA.
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II
To appeal, Foster must obtain a COA, which requires him to make “a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). “Where a
district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Because the OCCA considered Foster’s claims on the merits, he is not entitled
to habeas relief unless the OCCA’s 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 the light of the evidence presented in the State court
proceeding.” § 2254(d)(1), (2). “Thus, the decision whether to grant [the] COA
request rests on whether reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong in light of the deference owed to the
OCCA’s adjudication of [the] claims.” Howell v. Trammell, 728 F.3d 1202, 1225
(10th Cir. 2013) (quotation omitted).
When a habeas petitioner challenges the sufficiency of the evidence, “the
relevant question is whether, after viewing the evidence in the light most favorable to
the prosecution, 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
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(1979). Under the applicable provision of Oklahoma law, “[a] person commits
murder in the first degree when that person unlawfully and with malice aforethought
causes the death of another human being.” Okla. Stat. tit. 21, § 701.7(A). The only
element controverted by Foster is whether the shooting was unlawful. Because he
presented evidence that he acted in self-defense, it was the State’s burden to prove
beyond a reasonable doubt that he was not acting in self-defense. Dawkins v. State,
252 P.3d 214, 220 (Okla. Crim. App. 2011).
Foster argues that the presence of a 9 mm casing, in good condition, where
Rodgers had been standing, compels a finding that he acted in self-defense. In his
view, any other conclusion is unreasonable. We disagree. Several witnesses testified
that Rodgers did not have a gun or that he did not shoot at Foster. There also was
testimony that the Apache Manor apartment complex was the site of frequent “shots
fired” and “shots heard” police calls. The jury could have reasonably credited this
testimony, decided that the 9 mm casing was not related to this shooting, and rejected
Foster’s theory that Rodgers must have had a 9 mm handgun, which a bystander then
removed from the scene. See Jackson, 443 U.S. at 319 (noting that it is “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts”).
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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