FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 1, 2009
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 MICHAEL J. HICKS,

              Petitioner-Appellant,
                                                        No. 09-5008
 v.                                         (D.C. Nos. 4:04-CV-00656-JHP-SAJ
                                               and 4:04-CV-00658-JHP-SAJ)
 JUSTIN JONES, Director, Oklahoma                       (N.D. Okla.)
 Department of Corrections,

              Respondent-Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges. *


      Michael J. Hicks, an Oklahoma state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) following the district court’s denial of his 28

U.S.C. § 2254 habeas petition. 1 For substantially the same reasons set forth by

the district court, we deny Hicks’ request for a COA and dismiss the appeal.


      *
         The Honorable Michael W. McConnell, originally a member of this panel,
resigned his commission effective August 31, 2009, The two remaining members
of this panel, who are in agreement, have determined this matter. See 28 U.S.C. §
46(d).
      1
        Because Hicks proceeds pro se on appeal, we construe his filings
liberally. See Haines v. Kerner, 

, 520-21 (1972).
                                          I

      In 2000, Hicks was convicted of first degree murder in Oklahoma state

court for the murder of his wife and was sentenced to life imprisonment without

the possibility of parole. The jury found Hicks murdered his wife by driving her

into a river where she drowned. Hicks defended on the grounds that he fell asleep

at the wheel while speeding and accidently drove the car off a cliff. Hicks

appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals

(“OCCA”), raising four challenges: (1) error in allowing the state to play a taped

telephone conversation involving Hicks; (2) error in denying Hicks’ request to

have the jury view the scene of the crash; (3) error in allowing the prosecution to

impeach its own witness concerning evidence provided through discovery; and 4)

lack of evidentiary support for his conviction. The OCCA rejected Hicks’ claims

and upheld his conviction and sentence. Hicks was represented by the same

counsel at trial and on direct appeal.

      Hicks then obtained new counsel and sought post-conviction relief in

Oklahoma state court. The state district court denied relief. Hicks appealed to

the OCCA, asserting three propositions of error, including: that the trial court

failed to instruct the jury on lesser-included offenses or to obtain an informed

waiver of the right to have such instructions given, and that prior counsel was

ineffective. The OCCA affirmed the denial of post-conviction relief.




                                         -2-
      In 2004, Hicks filed a federal petition for habeas corpus relief under 28

U.S.C. § 2254 in the United States District Court for the Northen District of

Oklahoma. In his habeas petition, he raised five claims: (1) trial court errors

regarding jury instructions rendered his trial fundamentally unfair; (2) appellate

counsel was ineffective; (3) trial counsel was ineffective; (4) trial court

evidentiary errors rendered his trial fundamentally unfair; and (5) his conviction

lacked evidentiary support. The district court denied the petition on the grounds

that the Oklahoma courts’ decisions survived our deferential standard of review

under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). It declined

to grant a COA. Hicks now appeals.

                                          II

      Because the district court denied Hicks’ habeas petition and his request for

a COA, he may not proceed on appeal absent a grant of a COA by this court. 28

U.S.C. § 2253(c)(1)(A). To obtain a COA, Hicks must make a “substantial

showing of the denial of a constitutional right.” § 2253(c)(2). This requires he

show “that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 

, 484 (2000) (quotations omitted).

      Under AEDPA, Hicks is entitled to federal habeas relief only if a state

court decision was “contrary to, or involved an unreasonable application of,

                                         -3-
clearly established Federal law, as determined by the Supreme Court of the

United States” or “based on an unreasonable determination of the facts in light of

the evidence presented.” § 2254(d)(1)-(2). Hicks seeks a COA on the same

claims he made before the federal district court.

      First, Hicks argues that trial court errors regarding jury instructions

rendered his trial fundamentally unfair and thus deprived him of due process of

law. Specifically, Hicks argues that the trial court erred by: (1) failing to inquire

into whether an instruction on the lesser-included offense of negligent homicide

was warranted by the evidence; (2) failing to obtain an affirmative waiver of the

lesser-included offense instruction; and (3) failing to sua sponte issue the lesser-

included offense instruction. Hicks first raised this claim in his application for

post-conviction relief, but the OCCA refused to consider the claim because Hicks

did not raise it on direct appeal.

      This court has established that “a petitioner in a non-capital case is not

entitled to habeas relief for the failure to give a lesser-included offense

instruction.” Lujan v. Tansy, 

, 1036 (10th Cir. 1993) (quotation

omitted); accord Dockins v. Hines, 

, 938 (10th Cir. 2004). Hicks

argues that Oklahoma state law “protects a defendant’s right to an instruction on

his theory of defense,” including a defense that “reduces the charge to a lesser-

included offense” if “there is evidence to support it.” Ball v. State, 

,

89 (Okla. Crim. App. 2007). This standard, however, is irrelevant to the federal

                                          -4-
habeas inquiry, which asks only if the trial court’s decision was contrary to or an

unreasonable application of clearly established federal law. 2 § 2254(d)(1).

Because there is no federal due process right to a lesser-included offense

instruction in a non-capital case, the trial court’s decisions cannot be contrary to

or an unreasonable application of clearly established federal law.

      Second, Hicks argues his appellate counsel provided ineffective assistance

by omitting two claims on appeal: that the trial court erred by failing to instruct

on lesser-included offenses and that trial counsel was ineffective in failing to

request such an instruction. In affirming the trial court’s denial of post-

conviction relief, the OCCA correctly applied Strickland v. Washington, 

(1984), and determined Hicks was not denied effective assistance of appellate

counsel because Hicks failed to present evidence that tended to prove the lesser-

included offense of negligent homicide. Hicks is therefore entitled to habeas

relief only if he demonstrates that the OCCA’s adjudication of this claim was an

unreasonable application of Strickland.

      To establish ineffective assistance of counsel under Strickland, Hicks must

demonstrate: (1) that his trial counsel was deficient such that he was deprived of

“reasonably effective assistance” and (2) that counsel’s deficient performance


      2
        Additionally, as discussed infra, there is insufficient evidence to support a
lesser-included offense instruction. The instruction was therefore unmerited even
under Oklahoma law, see Smith v. State, 

, 641 (Okla. Crim. App.
1977).

                                          -5-
prejudiced his case, meaning that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” 

694. Appellate counsel’s assistance cannot be

constitutionally deficient for failing to raise an issue on direct appeal if the

omitted issue was without merit. Hawkins v. Hannigan, 

, 1152

(10th Cir. 1999).

      We hold that Hicks has not established he suffered constitutionally

deficient assistance of appellate counsel. “[A]n instruction on a lesser included

offense need only be given when there is evidence that tends to prove the lesser

included offense was committed.” Darks v. Mullin, 

, 1009 (10th

Cir. 2003). Specifically, a lesser-included offense instruction requires “evidence

to support a finding that the lesser offense was committed while the greater

offense was not.” United States v. Scalf, 

, 1546 (10th Cir. 1983).

      Hicks has not produced such evidence. Under Oklahoma law, negligent

homicide in a death caused by a motor vehicle requires that the defendant act with

reckless disregard for the safety of others. Okla. Stat. Ann. tit. 47, §11-903(A).

Hicks has not produced any evidence of recklessness. He argues that his driving

two miles per hour over the speed limit and falling asleep at the wheel constitute

such evidence. Although he cites to cases holding speeding or falling asleep

while driving to be evidence of recklessness, these cases do not establish that

slight speeding or falling asleep at the wheel are reckless in and of themselves,

                                          -6-
absent other evidence. Thus Hicks presented insufficient evidence to support the

lesser-included offense of negligent homicide and the OCCA’s conclusion that

Hicks’ appellate counsel was not constitutionally deficient was not an

unreasonable application of Strickland.

      Third, Hicks argues that his trial counsel was ineffective because he neither

requested a lesser-included offense instruction nor specifically consulted with

Hicks about his decision not to seek an instruction. The state court denied post-

conviction relief on the ground that the evidence presented by Hicks at trial failed

to support an instruction as to any lesser-included offense and therefore trial

counsel could not have been deficient in failing to request or consult Hicks about

the instruction. The OCCA determined that the that the claim was waived

because it was not raised on direct appeal. Because Hicks was represented by the

same attorney at trial and on direct appeal, however, this court may nonetheless

address his ineffective assistance of counsel claim. See English v. Cody, 

, 1264 (10th Cir. 1998). We have already determined that Hicks was

not entitled to an instruction on the lesser-included offense of negligent homicide.

Consequently, his trial counsel could not have been constitutionally deficient for

choosing not to seek such an instruction or failing to consult with him about the

instruction.

      Fourth, Hicks argues that the trial court committed two evidentiary errors

that rendered his trial fundamentally unfair and thus deprived him of due process:

                                          -7-
(1) refusing to allow the jury to view the scene of the crash and (2) allowing the

prosecution to play taped telephone conversations involving Hicks. The OCCA

rejected each claim on direct appeal, holding that the record contains

comprehensive and exhaustive evidence documenting the scene of the crash and

that the conversations were probative of motive and intent.

       “We may not provide habeas corpus relief on the basis of state court

evidentiary rulings unless they rendered the trial so fundamentally unfair that a

denial of constitutional rights results.” Duckett v. Mullin, 

, 999

(10th Cir. 2002) (quotation omitted). Here, Hicks has failed to establish that the

evidentiary rulings rendered his trial fundamentally unfair. The taped

conversations were relevant and not unduly prejudicial; their admission therefore

did not violate due process. Similarly, there was ample evidence submitted at

trial about the scene of the crash such that the trial court’s preventing the jury

from viewing the scene did not render Hicks’ trial fundamentally unfair.

      Fifth, Hicks argues that his conviction for murder in the first degree lacked

sufficient evidentiary support. Specifically, Hicks argues that the government

failed to prove the elements of causation and intent beyond a reasonable doubt. 3


      3
        Under the Oklahoma law in force at the time of the events at issue, “[a]
person commit[ted] murder in the first degree when that person unlawfully and
with malice aforethought cause[d] the death of another human being. Malice
[was] that deliberate intention unlawfully to take away the life of a human being,
which is manifested by external circumstances capable of proof.” Okla. Stat.
Ann. tit. 21 § 701.7(A).

                                         -8-
On direct appeal, the OCCA held that although there was “conflicting testimony

about some details of the accident,” a rational jury could have found the

government’s evidence proved all elements of the crime beyond a reasonable

doubt.

         The OCCA had a duty to review the sufficiency of the evidence “in the

light most favorable to the prosecution” and ask whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Va., 

, 319 (1979) (emphasis omitted). In the Tenth

Circuit, “[s]ufficiency of the evidence is a mixed question of law and fact. We

ask whether the facts are correct and whether the law was properly applied to the

facts.” Maynard v. Boone, 

, 673 (10th Cir. 2006). Consequently, on

habeas review, we review the sufficiency of the evidence under §§ 2254(d)(1) and

(d)(2). Id.; see also Brown v. Sirmons, 

, 1089 (10th Cir. 2008).

Hicks’ claim fails under both standards.

         Sufficient evidence was presented by the government to allow a rational

jury to draw reasonable inferences as to both causation and intent. First,

Maryland State Police Officer Joseph Hancock, a member of the Crash

Reconstruction Unit, testified that the crash could not have occurred accidently as

Hicks recounted because tire prints indicated the car was rolling rather than

braking; the path of the vehicle required at least eight “steering inputs” by a

conscious driver; the final location of the car evidenced that it had actually

                                           -9-
traveled at less than twenty-five miles per hour; and evidence related to the seat

belt and steering wheel “sheer capsules” established that Hicks was not in the car

when it drove over the cliff. Second, a friend of Hicks testified that, a few

months before the accident, Hicks told her that he realized that he could kill his

wife in a scenario similar to the way in which she died. The prosecution played a

taped telephone conversation between the friend and Hicks that confirmed the

earlier interaction. Finally, the prosecution produced witnesses present at the

scene of the accident who testified that they observed no mud, scratches, or

significant injuries on Hicks, despite his claim that he had just driven off a cliff,

over a muddy bank, and into a deep river.

      When viewed in the light most favorable to the government, the evidence

was sufficient to allow a rational jury to find all the elements of murder in the

first degree beyond a reasonable doubt. The decision of the OCCA was therefore

not an unreasonable application of or contrary to clearly established federal law.

Nor was it “based on an unreasonable determination of the facts in light of the

evidence.” § 2254(d)(2).




                                         - 10 -
                                    III

     For the foregoing reasons, we DENY Hicks’ application for a COA and

DISMISS the appeal.



                                            ENTERED FOR THE COURT



                                            Carlos F. Lucero
                                            Circuit Judge




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