F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 19, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 HOM ER BEN BARGER,

                 Petitioner-A ppellant,                  No. 07-7008
          v.                                         District of Oklahoma
 TH E STA TE O F O K LA H O MA ,              (D.C. No. CIV-05-90-FHS-KEW )

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Homer Ben Barger, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

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

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. M cDaniel, 

, 484 (2000) (internal

quotation marks omitted). Because w e conclude that M r. Barger has failed to

make “a substantial showing of the denial of a constitutional right,” w e deny his

request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                  I. Background

      M r. Barger was convicted of first-degree murder and second-degree

burglary in connection with the fatal shooting of Richard Harkey in the early

morning hours of February 29, 2000, with a M arlin .22 M agnum rifle that had

been stolen from Harkey’s residence on February 22, 2000. His convictions were

affirmed on direct appeal. W e summarize the facts in some detail because one of

the issues he now raises is the sufficiency of the evidence supporting both of

these convictions.

      On February 7, 2000, M r. Barger’s estranged wife, Kelly, left him and

moved back in with M r. Harkey, who was her former husband. On February 22,

Kelly discovered that the Harkey residence had been ransacked and burglarized.

Among the missing items were three guns: a M arlin .22 M agnum rifle, a

disassembled .22 rifle, and a muzzle loader. The .22 M agnum had a dark-colored

scope, and the disassembled rifle had a silver scope. After the burglary and

before M r. Harkey was murdered, M r. Barger confessed to his roommate,




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Brandon Satterfield, that he burglarized M r. Harkey’s residence, and showed M r.

Satterfield a silver scope and a dark scope.

      Sometime between 4:00 a.m. and 4:45 a.m. on February 29, 2000, M r.

Harkey heard a noise outside his residence and went out to investigate, armed

with a child’s BB gun. Kelly saw him running across the yard, holding the BB

gun and screaming. Kelly then heard at least three gunshots. Forensic evidence

later confirmed that the weapon used during the murder was the same w eapon

stolen from the home the previous week.

      On February 29, and again on M arch 1, 2000, M r. Barger went to the home

of Harlen Smith. On the second day, M r. Barger told Smith that Kelly’s ex-

husband had been murdered and that he had been down at the Harkey residence in

Caney the night before. M r. Barger also told M r. Smith that the police would

probably be looking for him because there was evidence of him being at the scene

earlier that day, such as vehicle tire tracks, and his footprints and fingerprints.

                          II. Sufficiency of the Evidence

      M r. Barger first claims that the jury convicted him against the weight of the

evidence in violation of the Fourteenth Amendment’s Due Process Clause.

Habeas relief may be proper when the state court adjudication of a claim “resulted

in a decision that was based on an unreasonable determination of the facts in light

of the evidence.” 28 U.S.C. § 2254(d)(2). “Sufficiency of the evidence can be

considered to be a mixed question of law and fact.” Case v. M ondragon, 887

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F.2d 1388, 1392 (10th Cir. 1989). For federal habeas review of a state court

conviction we ask “w hether, 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,

, 319 (1979).

      The Supreme Court has repeatedly stressed “the deference to be given to

the trier of fact” and the “sharply limited nature of constitutional sufficiency

review.” Wright v. West, 

, 296 (1992) (citing 

). W e must “accept the jury’s resolution of the evidence as long as it is w ithin

the bounds of reason.” Grubbs v. Hannigan, 

, 1487 (10th Cir.

1993) (citing United States v. Edmondson, 

, 1548 (10th Cir. 1992)).

M r. Barger contends that the district court used an incorrect standard of evidence

in denying his habeas petition. In particular, he says the district court used a

burden of “any evidence” rather than “beyond a reasonable doubt” in finding

sufficient evidence for conviction. That is a misinterpretation of the district court

opinion. The district court correctly applied the Jackson standard in which any

“rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” 

(emphasis added). However,

because insufficiency of evidence claims are reviewed de novo by this court, we

will reexamine the facts here.




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       W e begin with the burglary. Brandon Satterfield, M r. Barger’s former

roommate, testified that Barger admitted the burglary to him and gave significant

details of the crime. He also testified that M r. Barger showed him two scopes and

told him where he had disposed of the stolen property. Although M r. Barger

denied, in his own testimony, that these events occurred, “a federal habeas corpus

court faced with a record of historical facts that supports conflicting inferences

must presume . . . that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.” 

. W e find

that the evidence was more than sufficient under the Jackson standard to support

his burglary conviction and that the decision of the Court of Criminal Appeals

w as consistent w ith federal law .

       There was also sufficient evidence to support the murder conviction. W hile

it is true that no eye witness could identify M r. Barger as the person who shot

Harkey, eye witnesses are not prerequisites to finding a defendant guilty beyond

reasonable doubt. Forensic evidence shows that the rifle that M r. Barger told

Satterfield he had stolen from Harkey’s home was the murder weapon. Satterfield

testified that he and M r. Barger had discussed possible methods to kill Harkey,

including shooting him. They even discussed different ways to disguise Barger,

including wearing a ski mask and painting around the eyes and mouth so that his

race could not be determined. M r. Barger also stated to Satterfield that he could

lure Harkey out of his residence by making noise outside near H arkey’s truck.

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Again, as the Court laid out in Jackson, we must interpret this evidence in favor

of the prosecution. 

. W e find that the evidence was

sufficient to permit a rational juror to convict M r. Barger of murder in the first

degree beyond a reasonable doubt, and that M r. Barger has not met his burden of

making a substantial showing to the contrary.

                III. Improper Admission of Deposition Testimony

      M r. Barger next claims the trial court abused its discretion in allowing the

deposition of M r. Smith to be used in lieu of live testimony in court, thereby

denying the defendant the opportunity to confront witnesses against him in

violation of the Sixth Amendment. “In considering a Confrontation Clause claim

on habeas . . . we review a state court decision by assessing whether it is

reasonably supported by the record and whether its legal analysis is

constitutionally sound.” Paxton v. Ward, 

, 1209 (10th Cir. 1999).

“As a general matter, federal habeas corpus relief does not lie to review state law

questions about the admissibility of evidence, and federal courts may not interfere

with state evidentiary rulings unless . . . [they] rendered the trial so fundamentally

unfair as to constitute a denial of federal constitutional rights.” M oore v. M arr,

, 1246 (10th Cir. 2001) (internal quotations and citations omitted).

The district court provided a thorough analysis of Oklahoma law on the admission

of deposition testimony, finding that the trial court did not abuse its discretion in

admitting such evidence according to O klahoma law . Although the district court

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did not specifically say that Oklahoma law in this instance is in line with the

Confrontation Clause, we conclude that it is.

      Testimonial statements of a w itness w ho does not appear at trial are

admissible under the Sixth Amendment so long as the witness was “unavailable to

testify, and the defendant . . . had a prior opportunity for cross-examination.”

Crawford v. Washington, 

, 54 (2004). M r. Barger does not dispute

that the witness, M r. Smith, was unavailable. M oreover, M r. Barger’s counsel

was present during M r. Smith’s deposition and took full advantage of the

opportunity to cross-examine the witness.

      M r. Barger argues, however, that he did not have a proper opportunity to

cross-examine because he changed counsel between the deposition and trial, and

his trial counsel thus did not have an opportunity to cross-examine M r. Smith.

Unfortunately for Petitioner, the Confrontation Clause provides him “only an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Kentucky v. Stincer, 

, 739 (internal quotation marks omitted).

Barring evidence of ineffective counsel at the deposition, which is not claimed,

we find no precedent suggesting that switching counsel in the midst of trial

proceedings automatically renders cross-examination by the defendant’s first

counsel ineffective. Indeed, such a rule would invite parties to engage in the

strategic replacement of counsel whenever an important witness, who had

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previously been cross-examined, becomes unavailable to testify at trial. Not

surprisingly, neither this Court nor the Supreme Court has accepted such an

argument, and we do not believe it w arrants a certificate of appealability.

                                  IV. Conclusion

      W e D EN Y M r. Barger’s request for a COA and DISM ISS this appeal.

                                                     Entered for the Court,


                                                     M ichael W . M cConnell
                                                     Circuit Judge




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