F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 28 2000
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


CHAD CLINT COFFEY,

          Petitioner-Appellant,

v.                                                     No. 99-7094
                                                 (E. District of Oklahoma)
GARY E. GIBSON; ATTORNEY                         (D.C. No. 97-CV-207-B)
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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       This order and judgment is not binding precedent, except under the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.
      Chad Coffey was tried by jury in Oklahoma state court and convicted of

murder in the first degree. Coffey was sentenced to life imprisonment. After

exhausting his state appeals, Coffey filed the instant habeas corpus petition

pursuant to 28 U.S.C. § 2254. As the sole ground for habeas relief, Coffey

alleged that the state trial court failed to properly instruct the jury on his theory of

defense, i.e., defense of another.

      The district court referred Coffey’s § 2254 habeas petition to a magistrate

judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The

magistrate judge prepared a Report and Recommendation (“R & R”),

recommending that Coffey’s petition be denied. The magistrate began by noting

that Coffey could prevail on his claim only by demonstrating that the trial court’s

failure to instruct the jury on Coffey’s theory of defense “‘had the effect of

rendering the trial so fundamentally unfair as to cause a denial of a fair trial.’”

R & R at 2 (quoting Maes v. Thomas, 

, 984 (10th Cir. 1995). 1 The

magistrate judge then undertook an exceedingly thorough review of the record.

Based on that review, the magistrate judge determined that because evidence


      1
        To the extent that Coffey’s brief on appeal could be construed as asserting
that the refusal to give a theory of defense instruction always constitutes a due
process violation when there is “some” evidence supporting theory, that argument
is foreclosed by Maes. 

(citing Fourth Circuit decision in
Nickerson v. Lee, 

, 1138 (4th Cir. 1992), for proposition that failure
to give theory-of-defense instruction, even when there was sufficient evidence to
support such an instruction, does not necessarily rise to a due process violation).

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supporting Coffey’s defense-of-another theory was virtually nonexistent, the

failure to give an instruction on that theory did not render Coffey’s trial

fundamentally unfair. Upon de novo review of the R & R, the district court

agreed that within the context of the entire trial, the state trial court’s failure to

give the jury the requested instruction did not result in a miscarriage of justice or

fundamentally unfair trial. Furthermore, concluding that Coffey had not “made a

substantial showing of the denial of a constitutional right,” see 28 U.S.C. §

2253(c)(2), the district court denied Coffey’s request for a certificate of

appealability (“COA”).

      The case is before this court on Coffey’s renewed request for a COA.

Coffey can make a substantial showing of the denial of a constitutional right, and

therefore establish his entitlement to a COA, by demonstrating that the district

court’s resolution of his claim is debatable among jurists of reason, subject to a

different resolution on appeal, or deserving of further proceedings. See Barefoot

v. Estelle, 

, 893 (1983). Coffey has not made such a showing. A

review of Coffey’s appellate brief, the district court order, the R & R, and the

entire record on appeal, clearly reveals that the state trial court’s failure to give a

defense-of-another instruction did not render Coffey’s trial fundamentally unfair.




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Accordingly, this court DENIES Coffey’s request for a COA for substantially

those reasons set out in the district court order dated July 14, 1999, and the R & R

dated May 7, 1998. This appeal is hereby DISMISSED.

                                      ENTERED FOR THE COURT:



                                      Michael R. Murphy
                                      Circuit Judge




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