Chatman v. Saffle ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SEBRIN CHATMAN,
Petitioner-Appellant,
v. No. 00-7042
(D.C. No. 99-CV-111-P)
JAMES SAFFLE; THE OKLAHOMA (E.D. Okla.)
DEPARTMENT OF CORRECTIONS;
THE STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner, appearing pro se , asks this court to grant him a certificate of
appealability, so that he can appeal the district court’s denial of his petition for
writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2254. We will issue
a certificate of appealability only if petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)(1). Where, as here,
the district court rejected the constitutional claims on the merits, “petitioner must
demonstrate that reasonable jurists would find [it’s] assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484
(2000). Because we find the district court’s assessment of petitioner’s claims
neither debatable nor wrong, we deny his application for a certificate of
appealability and DISMISS the appeal. 1
Entered for the Court
1
Although he does make passing mention of the claims he argued before the
district court (sufficiency of the evidence and ineffective assistance of both trial
and appellate counsel), petitioner’s only substantive argument on appeal relates to
the trial court’s refusal to instruct the jury on the crime of Assault and Battery
With a Dangerous Weapon. He did not raise this argument in his habeas petition
before the district court, and the district court declined to address the issue when
petitioner raised it in his supplemental request for rehearing. Consequently, the
issue would not be considered on appeal. See Walker v. Mather (In re Walker) ,
959 F.2d 894, 896 (10th Cir. 1992) . We note, however, as did the Oklahoma
Court of Criminal Appeals when petitioner raised this issue on direct appeal, that
Assault and Battery With a Dangerous Weapon is not a lesser included offense of
First Degree Murder, and the record shows that the jury was instructed on lesser
included offenses. See Smith v. State , 727 P.2d 1366, 1371 (Okla. Crim. App.
1986). Contrary to petitioner’s assertion, Smith does not conflict with Jackson v.
State , 964 P.2d 875 (Okla. Crim. App. 1998).
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Wade Brorby
Circuit Judge
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