F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               June 8, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 NATHANIEL JACOBS, JR.,

               Petitioner-Appellant,                       No. 04-5115
        v.                                              (N.D. Oklahoma)
 DAYTON J. POPPELL, Warden,                        (D.C. No. 01-CV-138-EA)

               Respondent-Appellee.




                                        ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.


PER CURIAM.

      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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Nathaniel Jacobs, an Oklahoma state prisoner, seeks a certificate of

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

§ 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a “final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by a State court,” unless
the petitioner first obtains a COA). Because Mr. Jacobs has not “made a

substantial showing of the denial of a constitutional right,” 

this

court denies his request for a COA and dismisses this appeal.

                                 I. BACKGROUND

      Nathaniel Jacobs was convicted by a jury in Tulsa county district court of

two counts of first degree murder (counts I and II), and one count of shooting

with intent to kill (count III). The Oklahoma Court of Criminal Appeals affirmed

his conviction on direct appeal. Mr. Jacobs did not seek post-conviction relief.

He then filed an application under 28 U.S.C. § 2254 in the United States District

Court for the Western District of Oklahoma, which was transferred to the

Northern District of Oklahoma.

      Mr. Jacobs asserted four claims: (1) the prosecutor improperly commented

on Mr. Jacobs’ right to remain silent and improperly defined the State’s burden of

proof; (2) Mr. Jacobs’ convictions are not supported by sufficient evidence; (3)

the jury was improperly instructed on Mr. Jacobs’ culpability for the offenses

charged; (4) Mr. Jacobs was denied his constitutional right to confront witnesses.

      The federal district court found that Mr. Jacobs properly exhausted his

claims in state court, but also found that he did not meet his burden of proving

that he was entitled to an evidentiary hearing. It dismissed Mr. Jacobs’ petition




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and denied him a COA, finding that the OCCA conclusions were not an

unreasonable application of federal law.

                                   II. DISCUSSION

      Mr. Jacobs’ request for a COA raises the same issues he presented to the

district court, and one additional issue: (5) that the trial court violated his Sixth

Amendment rights when it closed the courtroom during the testimony of a

witness. This claim was presented to the OCCA but was not presented to the

district court. Because this claim was not raised before the federal district court,

we will not consider it. See Green v. Dorrell, 

, 917 (10th Cir. 1992).

      As to the remaining claims, we deny the request for a COA and dismiss the

appeal. Contrary to counsel’s averment that the standard of review for each

proposition is “clear and convincing evidence,” which she states without citation

or authority, Mr. Jacobs must establish that the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as established by the Supreme Court.” 28 U.S.C. § 2254(d)(1). In

the alternative, Mr. Jacobs must demonstrate that the decision was “an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 

As to the first claim involving the

prosecutor’s statements, we agree with the district court that the remarks the

prosecutor made during voir dire did not necessarily implicate Mr. Jacobs’ right



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to remain silent. In addition, the prosecutor’s statement regarding the role of

defense counsel did not impermissibly shift the burden of proof.

      As to the sufficiency of the evidence, we agree that a reasonable jury could

have found proof of guilt beyond a reasonable doubt that Mr. Jacobs had the

intent to kill all of the occupants of the car. As to the challenged instructions

regarding culpability, we agree that the instructions defining first-degree murder

and criminal intent did not render the trial fundamentally unfair.

Finally, we agree that, even assuming that Mr. Jacobs’ rights under the

Confrontation Clause were violated by the restrictions on the cross-examination

of a prosecution witness, the error was harmless because there is nothing in the

record indicating that the result would have been different but for the error.

      In addition, the court is dismayed by the representation that counsel for Mr.

Jacobs, Ms. Lori Combs, has provided to her client. Among other failings, apart

from a few organizational shuffles, her brief is a close recitation of the § 2254

petition she filed before the district court. Furthermore, the brief’s table of

authorities is incomplete in violation of F ED . R. A PP . P. 28(a)(3); the

jurisdictional statement omits the bases for appellate jurisdiction, see 

the brief omits a certificate of compliance in violation of F ED . R.

A PP . P. 28(a)(11). With one exception, on page 1 of her brief, Ms. Combs fails to

cite the relevant statute, the Antiterrorism and Effective Death Penalty Act



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(“AEDPA”); she similarly neglected to cite AEDPA in the habeas petition filed in

the district court, and she has insisted throughout that an inapplicable standard of

review applies to each contention. Unsurprisingly, of the sixty-six cases counsel

cites, only five post-date the near decade-old passage of AEDPA. Pursuant to

Rule 46 of the F EDERAL R ULES OF A PPELLATE P ROCEDURE and T ENTH C IRCUIT

R ULES 46.5(D)(4) and 46.6(C), this court orders Ms. Combs to show cause why

she should not be sanctioned by this court for her inadequate representation of her

client.

                                 III. CONCLUSION

          Accordingly, we DENY Mr. Jacobs’ request for a COA, DISMISS the

matter, and ORDER Ms. Combs to show cause within 10 days of the date of this

order.

                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




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