F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 11, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 W E N DELL R . H A MILTO N ,

                 Petitioner-A ppellant,                  No. 06-6200
          v.                                           (W .D. of Okla.)
 JUSTIN JONES, W arden,                           (D.C. No. CV-05-836-M )

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **




      W endell Hamilton, a Nebraska state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

For substantially the same reasons set forth by the magistrate judge, whose

thorough report and recommendation was adopted by the district court, we deny

the COA and dismiss this appeal. We also deny Hamilton’s request to proceed in


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
forma pauperis (IFP) because he has failed to make the requisite showing that this

appeal w as made in good faith.

                                   I. Background

      In January 2001, eleven Oklahoma City area stores (mainly convenience

stores and fast-food restaurants) were robbed. In seven of the robberies, a man

approached the store clerk and handed him a note that said “this is a robbery” and

instructed the clerk to turn over the money and he would not be shot. In the other

four cases, the perpetrator would either ask for change or make a small purchase

and then flash what appeared to be a pistol handle in his waistband, announce the

robbery, and demand cash. After the robbery of a Dunkin Donuts shop on

January 22, 2001, Hamilton and his son were stopped by a police officer

responding to the scene. From Hamilton’s car, the officer recovered a Dunkin

Donuts bag, a coat matching the description given by the store clerk, $150 in

cash, a toy pistol, and a crack pipe.

      The evidence amassed against H amilton was considerable: the victims of all

eleven robberies identified Hamilton as the assailant; Hamilton’s son admitted to

driving the getaw ay car in several of the robberies; a handwriting expert

concluded Hamilton wrote six of the robbery notes, and his son admitted to

writing the seventh; during police interrogation, Hamilton admitted to comm itting

three of the robberies, explaining that his ongoing drug habit was the impetus.




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      Hamilton was convicted by a jury on ten counts of first degree robbery, one

count of robbery with an imitation firearm, and one count of possession of drug

paraphernalia. Receiving enhancements for prior felony convictions, Hamilton

was sentenced to eleven consecutive life terms of imprisonment. The Oklahoma

Court of Criminal Appeals affirmed his conviction on November 7, 2003 but

modified the sentence so that the consecutive life terms would run concurrently.

Hamilton’s subsequent application for post-conviction relief was denied by the

state district court on M arch 15, 2005. That decision was affirmed by the

Oklahoma Court of Criminal Appeals on June 16, 2005.

      Hamilton next filed a federal habeas petition, which the district court

denied. Hamilton v. M iller, CIV-05-836-M (W .D. Okla. M ay 23, 2006). In doing

so, the district court adopted the report of the magistrate judge concluding each of

Hamilton’s claims lacked merit under the standard established by 28 U.S.C.

§ 2254(d), i.e., that a w rit of habeas corpus under § 2254 can be granted only if

the state court’s decision was contrary to, or involved an unreasonable application

of, clearly established federal law, or if the state court applied the correct legal

rule that nevertheless resulted in an unreasonable determination of the facts.

Hamilton’s subsequent appeal was construed by the district court as a petition for

a COA. In an order dated June 16, 2005, the district court denied that petition.

Hamilton now appeals to this Court.




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                                     II. Analysis

      Hamilton is entitled to a COA if he can make a substantial showing of the

denial of a constitutional right. 28 U.S.C. § 2253(c). Such a showing can be

made by demonstrating the issues raised are susceptible to debate among jurists of

reason. Slack v. M cDaniel, 529 U .S. 473, 484 (2000) (“The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”). This Court gives deferential

treatment to state court decisions in considering a habeas petitioner’s request for

COA. Dockins v. Hines, 

, 938 (10th Cir. 2004).

      Hamilton raises six claims on appeal: (1) the trial court erred in permitting

the joinder for trial of all eleven robbery counts and the drug paraphernalia count;

(2) his sentences were excessive under the Eight Amendment and the Oklahoma

Constitution; (3) trial counsel was ineffective for conceding guilt with respect to

two of the robbery counts without first consulting with Hamilton and for

stipulating to his prior convictions at trial; (4) appellate counsel was ineffective

for failing to raise certain defenses on appeal due to a conflict of interest w ith

trial counsel stemming from their working together at the Oklahoma public

defender’s office; (5) the trial court erred in instructing the jury under the

enhancement provisions applicable to habitual offenders generally, rather than

those applicable to robbery offenses specifically; and (6) appellate counsel was

ineffective for failing to raise the enhancement issue on appeal.

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      Because Hamilton has failed to show that reasonable jurists would conclude

the trail court’s resolution of any one of these issues is “debatable or wrong,” w e

deny his request for a COA. In so doing, we adopt the conclusions of the

magistrate judge, whose 25-page report and recommendation reflects a careful

analysis of the record and is amply supported by applicable law. W e briefly

address each claim in turn.

Joinder of Counts

      To the extent H amilton argues that joinder was improper under state law,

he fails to state a cognizable claim for federal habeas relief. Webber v. Scott, 

. 1177 n.5 (10th Cir. 2004). He argues joinder violated his federal right

to due process, but this claim is procedurally barred for failure to raise it at the

state court level. Hamilton may bypass the procedural bar only if he can show

cause and actual prejudice resulting from his default, or that failure to consider

his claim will result in a miscarriage of justice. Coleman v. Thom pson, 

, 749–50 (1991). W e agree with the magistrate judge that Hamilton is unable

to make either showing.

Excessive Sentence

      Hamilton’s claim that his sentences w ere excessive because the trial court

ordered the eleven life sentences to be served consecutively was dismissed by the

magistrate judge because the issue was resolved on direct appeal. The Oklahoma

Court of Criminal Appeals modified the sentence such that the life terms w ould

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be served concurrently rather than consecutively. Since Hamilton concedes in his

reply that relief has been granted on this point, his argument on appeal fails.

Ineffective Assistance of Counsel

      Hamilton also asserts three grounds for relief based on ineffective

assistance of counsel under the Sixth Amendment. Based on the recommendation

of the magistrate judge, the district court found none of those grounds met the

applicable standards. To implicate the Sixth A mendment, counsel’s

representation must fall “below an objective standard of reasonableness,”

resulting in “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland v.

Washington, 

, 688, 694 (1984). Hamilton cannot demonstrate

prejudice to his case under any of the arguments articulated.

Error Predicated on Enhancement Instructions

      Hamilton’s final claim is that the trial court erred by instructing the jury

under the general enhancement provisions of Okla. Stat. tit. 21 § 51.1(B) rather

than under the specific enhancement provisions applicable to robberies comm itted

with a dangerous weapon. Pursuant to the general statute, the jury was instructed

that the minimum enhancement was twenty years as opposed to ten years under

the specific statute.

      But as the magistrate judge’s report makes clear, errors relating to jury

instructions are not reviewable in a federal habeas action “unless they are so

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fundamentally unfair as to deprive petitioner of a fair trial and to due process of

law.” Nguyen v. Reynolds, 

, 1357 (10th Cir. 1997) (quoting Long v.

Smith, 

, 23 (6th Cir. 1981)). W e agree this standard has not been

satisfied here.

      Significantly, the choice to use the general enhancement instructions in

Hamilton’s case has been explicitly sanctioned by the Oklahoma Court of

Criminal Appeals, which has held that “when one of the predicate offenses is not

a robbery offense and the new offense is a robbery offense, it is proper to enhance

under either [section].” Turner v. State, 

, 1158 (Okla. Crim. App.

1990) (internal citations omitted). As the magistrate judge’s report indicates, one

of the offenses used to enhance H amilton’s sentence w as not a robbery offense

but a felony conviction for check fraud. Thus, Hamilton’s case falls squarely

within the language of the Court of Criminal Appeals and the trial court did not

err in issuing the general instructions.

M otion to Proceed IFP

      W ith respect to Hamilton’s motion to proceed IFP, such requests are only

granted if the petitioner can show his appeal is taken in good faith and that he

lacks the financial ability to pay required fees. M cIntosh v. United States Parole

Comm’n, 

, 812 (10th Cir. 1997). Since we accept the district court’s

conclusion that Hamilton has “not presented a reasoned, nonfrivolous argument

on appeal,” District Court Order at 2, the motion is denied.

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                                 III. Conclusion

      Hamilton has failed to make a substantial showing of the denial of a

constitutional right. Therefore, we DEN Y his request for a CO A and DISM ISS

this appeal. His motion to proceed IFP is likewise DENIED because he has not

made the requisite showing that his appeal is in good faith.

                                Entered for the Court,

                                Timothy M . Tymkovich
                                Circuit Judge




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