FILED
United States Court of Appeals
Tenth Circuit
October 11, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ROY LEE HALL,
Petitioner-Appellant, No. 12-6079
v. (W. D. Okla.)
JAMES EZELL, Warden, (D.C. No. 5:11-CV-00390-C)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Roy Lee Hall, an Oklahoma state prisoner, seeks a certificate of
appealability (COA) to enable him to appeal the district court’s denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253(a), and we construe Hall’s filings liberally because
he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th
Cir. 1991).
*
This order is not binding precedent except under the doctrines of law of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.
**
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.
We conclude the district court correctly disposed of Hall’s petition, and
therefore DENY the application for a COA, DENY the motion to proceed in
forma pauperis, and DISMISS the appeal.
According to the evidence presented at Hall’s jury trial in Oklahoma
County District Court, law enforcement personnel searched Hall’s car with his
consent in March 2005 and found a plastic bag containing what turned out to be
more than twelve grams of a substance that tested positive for cocaine base. The
jury convicted Hall of trafficking in crack cocaine. In part due to two or more
previous felony convictions, the Oklahoma court sentenced Hall to 30 years’
imprisonment.
On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA), Hall
argued (as relevant here) that the trial court (1) improperly defined “reasonable
doubt” for the jury, (2) improperly instructed the jury regarding the range of
punishment, and (3) failed to instruct the jury on a lesser included offense. The
OCCA rejected each of these arguments.
Hall then filed a 28 U.S.C. § 2254 petition in district court. He raised the
same three grounds for relief and attached his OCCA brief as support. A
magistrate judge carefully evaluated Hall’s arguments and filed a report and
recommendation (R&R). See Hall v. Ezell, No. 5:11-cv-00390-C, ECF No. 18
(W.D. Okla. Feb. 12, 2012). The R&R recommended denying Hall’s petition on
all grounds. Hall timely objected but the district judge overruled Hall’s
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objections, adopted the R&R in full, and denied Hall’s petition. Id., ECF Nos.
20, 21 (Mar. 5, 2012).
Hall now appeals, once again raising the same three grounds for relief and
attaching his OCCA brief as support. Hall must persuade us that the OCCA
unreasonably applied federal law in denying his claims on direct appeal. 28
U.S.C. § 2254(d). His arguments, however, are unconvincing. Accordingly, for
substantially the same reasons as the magistrate judge, we deny relief.
First, as to the jury instruction defining reasonable doubt, the magistrate
judge properly concluded that Hall’s failure to object to the instruction at trial
requires us to review his claim under the fundamental fairness standard. In other
words, Hall must show that the instruction was “so fundamentally unfair as to
deprive [him] of a fair trial.” Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir.
1997) (internal quotation omitted). Having reviewed the trial court’s reasonable
doubt instruction and Hall’s arguments against it, we agree with the magistrate
judge and the district court that Hall has not met this burden.
In his second ground for relief, Hall argues the trial court improperly
instructed the jury concerning the range of potential punishment. Hall’s argument
relies on the assertion that the mandatory minimum sentence for basic cocaine
trafficking at the time of Hall’s offense was lower than it is now (two years rather
than five years) and the trial court’s failure to realize that led to an erroneous
sentencing range by way of: (1) Okla. Stat. tit. 63, § 2-415(D)(1), which doubles
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the mandatory minimum for those convicted of trafficking five or more grams of
cocaine base, thus bringing Hall’s minimum punishment up to ten years
(according to the trial court) or four years (according to Hall); and (2) Okla. Stat.
tit. 21, § 51.1(C), which triples the minimum prison term for three-time felony
offenders, thus raising Hall’s potential punishment to a minimum of thirty years
(according to the trial court) or twelve years (according to Hall).
Hall’s argument is flawed from the outset. When Hall committed his
offense in March 2005, the mandatory minimum term for cocaine trafficking was
five years, not two. See Okla. Stat. tit. 63, § 2-401(B)(1) (2005) (specifying that
those convicted of narcotics trafficking “shall be sentenced to a term of
imprisonment for not less than five (5) years”). Recognizing this, the magistrate
judge correctly concluded Hall’s sentencing range argument provides no basis for
habeas relief.
Finally, Hall argues his trial was constitutionally deficient because the trial
court failed to provide a lesser included offense instruction. As the magistrate
judge noted, however, “[t]he Supreme Court has never recognized a federal
constitutional right to a lesser included offense instruction in non-capital cases,
and neither has this court.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004)
(citation omitted). Indeed, “[o]ur precedents establish a rule of ‘automatic
non-reviewability’ for claims based on a state court’s failure, in a non-capital
case, to give a lesser included offense instruction.” Id. Accordingly, Hall raises
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no colorable basis for habeas relief based on the failure to include a lesser
included offense instruction.
For the reasons set forth above, we DENY the application for a COA,
DENY the motion to proceed in forma pauperis, and DISMISS the appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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