F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 24 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk


DELBERT LENARD JOHNSON,

          Petitioner-Appellant,
                                                        No. 00-6095
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. CIV-99-1037-T)
STEVE HARGETT,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining Petitioner’s brief and the 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 court therefore orders the case submitted without oral argument.

      Delbert Lenard Johnson, proceeding   pro se , seeks a certificate of

appealability (“COA”) so he can appeal the district court’s denial of his 28


      *
       This order and judgment is not binding precedent, except under the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.
U.S.C. § 2254 habeas petition.   See 28 U.S.C. § 2253(c)(1)(A) (providing that an

appeal may not be taken from the denial of a § 2254 habeas petition unless the

petitioner first obtains a COA). After a two-day jury trial, Johnson was

convicted in state court of second degree burglary and sentenced to 23 years’

imprisonment. Johnson appealed the conviction arguing it was not supported by

sufficient evidence. Specifically, Johnson claimed the state of Oklahoma failed

to prove two of the six elements of burglary under Oklahoma law. Ultimately,

the Oklahoma Court of Criminal Appeals (“OCCA”) issued a summary opinion

affirming Johnson’s judgment and sentence. In the § 2254 habeas petition

Johnson filed with the United States District Court for the Western District of

Oklahoma, Johnson reasserted his claim that the state of Oklahoma did not

present sufficient evidence to support his conviction.

      Johnson’s habeas petition was referred to a United States magistrate judge.

The magistrate prepared a Report and Recommendation (“R & R”) recommending

that Johnson’s habeas petition be dismissed. Johnson filed written objections to

the R & R. After considering Johnson’s objections, the district court adopted the

R & R and dismissed Johnson’s habeas petition. The district court also refused




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to grant Johnson a COA. In this appeal, Johnson requests this court to grant him

a COA and reverse the district court’s judgment.       1



       Johnson filed his habeas petition after April 24, 1996; therefore, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our review of

his claim. Because the Oklahoma state court has already adjudicated Johnson’s

claim on the merits, this court cannot grant the writ of habeas corpus unless the

state court’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,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented at trial.”         

see also Williams v. Taylor      , 

, 1518-23 (2000)

(interpreting the standard set out in 28 U.S.C. § 2254(d)(1)). This court

presumes a state court’s factual findings to be correct unless the petitioner is able

to rebut this presumption with clear and convincing evidence.              See 28 U.S.C. §

2254(e)(1).          On habeas review of sufficiency of the evidence claims, this

court must determine “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 ,



       The district court also denied Johnson’s motion to proceed
       1
                                                                  in forma
pauperis on appeal. Johnson, however, has renewed that request by filing a
motion to proceed in forma pauperis with this court. Johnson’s motion is denied.

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, 319 (1979). This court, however, cannot weigh conflicting

evidence or assess the credibility of witness.      See Messer v. Roberts , 

, 1013 (10th Cir. 1996).

       To sustain a conviction for burglary in the second degree under Oklahoma

law, the prosecution must prove: (1) breaking, (2) and entering, (3) a building,

(4) of another, (5) in which property is kept, (6) with intent to steal.   See Okla.

Stat. tit. 21 § 1435. Johnson alleges that the prosecution failed to prove the

elements of “breaking” and “intent to steal.” Although the evidence admitted at

Johnson’s trial was primarily circumstantial, the elements of a crime may be

proved with circumstantial evidence.        See Topia v. Tansey , 

, 1563

(10th Cir. 1991).

       At Johnson’s trial, the prosecution presented evidence that police officers

observed Johnson exiting from a door on the east side of the building. Officers

found a pry mark on the door and it had been propped open. The prosecution

also presented evidence that glass leading into an office had been smashed and a

filing cabinet inside the office had been knocked over. Johnson’s fingerprints

and palm prints were found on the filing cabinet. Police officers testified that

Johnson was observed running out of the propped-open door. He was chased and

ultimately apprehended in a field adjacent to the building. The OCCA




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determined that a reasonable jury could conclude from this evidence that Johnson

broke into the building with the intent to steal property kept therein.

       Based on the lengthy discussion of Johnson’s claim in both the R & R and

the summary opinion issued by the OCCA, and a         de novo review of the entire

record on appeal, we agree with the OCCA and the district court that the

evidence presented at Johnson’s trial, viewed in the light most favorable to the

prosecution, was sufficient to support his conviction. Although Johnson makes

many unsupported claims in his briefs and his application for a COA, he has

failed to present clear and convincing evidence that the OCCA’s adjudication of

his claim “was based on an unreasonable determination of the facts in light of the

evidence presented.” 28 U.S.C. § 2254(d)(2). Additionally, the OCCA’s

disposition of Johnson’s claim is in accord with     Jackson and, therefore, is not

“contrary to or an unreasonable application of clearly established Supreme Court

precedent.” 28 U.S.C. § 2254(d)(1). Whether viewed as a question of law or one

of fact, Johnson’s sufficiency of the evidence claim lacks merit.     See Moore v.

Gibson , 

, 1176-77 (10th Cir. 1999) (noting that this court has not

decided the question of whether a sufficiency of the evidence claim brought

under the AEDPA is treated as a question of law or a question of fact).

       Johnson is not entitled to receive a COA unless he can make “a substantial

showing of the denial of a constitutional federal right.” 28 U.S.C. § 2253(c)(2).


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Johnson can make such a showing by demonstrating the issues raised are

debatable among jurists, a court could resolve the issues differently, or that the

questions presented deserve further proceedings.       See Slack v. McDaniel , 120 S.

Ct. 1595, 1603-04 (2000).

      Upon review of the relevant case law, Johnson’s application for a COA,

and the entire record on appeal, this court concludes the issue raised by Johnson

is not reasonably debatable, subject to a different resolution on appeal, or

deserving of further proceedings. Johnson is not entitled to a COA because he

has not made a substantial showing of the denial of a federal right as required by

28 U.S.C. § 2253(c)(2). Consequently, we         deny Johnson’s application for a

COA for substantially those reasons set out in the R & R dated January 5, 2000,

and dismiss his appeal.

                                                  ENTERED FOR THE COURT:



                                                  Michael R. Murphy
                                                  Circuit Judge




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