FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 11, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 ROY LEE HALL,

                 Petitioner-Appellant,                  No. 12-6079
          v.                                            (W. D. Okla.)
 JAMES EZELL, Warden,                           (D.C. No. 5:11-CV-00390-C)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Roy Lee Hall, an Oklahoma state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. We have jurisdiction under

28 U.S.C. §§ 1291 and 2253(a), and we construe Hall’s filings liberally because

he is proceeding pro se. See Hall v. Bellmon, 

, 1110 & n. 3 (10th

Cir. 1991).


      *
         This order is not binding precedent except under the doctrines of law of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 and 10th Cir. R. 32.1.
      **
         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.
      We conclude the district court correctly disposed of Hall’s petition, and

therefore DENY the application for a COA, DENY the motion to proceed in

forma pauperis, and DISMISS the appeal.

      According to the evidence presented at Hall’s jury trial in Oklahoma

County District Court, law enforcement personnel searched Hall’s car with his

consent in March 2005 and found a plastic bag containing what turned out to be

more than twelve grams of a substance that tested positive for cocaine base. The

jury convicted Hall of trafficking in crack cocaine. In part due to two or more

previous felony convictions, the Oklahoma court sentenced Hall to 30 years’

imprisonment.

      On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA), Hall

argued (as relevant here) that the trial court (1) improperly defined “reasonable

doubt” for the jury, (2) improperly instructed the jury regarding the range of

punishment, and (3) failed to instruct the jury on a lesser included offense. The

OCCA rejected each of these arguments.

      Hall then filed a 28 U.S.C. § 2254 petition in district court. He raised the

same three grounds for relief and attached his OCCA brief as support. A

magistrate judge carefully evaluated Hall’s arguments and filed a report and

recommendation (R&R). See Hall v. Ezell, No. 5:11-cv-00390-C, ECF No. 18

(W.D. Okla. Feb. 12, 2012). The R&R recommended denying Hall’s petition on

all grounds. Hall timely objected but the district judge overruled Hall’s

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objections, adopted the R&R in full, and denied Hall’s petition. 

21 (Mar. 5, 2012).

      Hall now appeals, once again raising the same three grounds for relief and

attaching his OCCA brief as support. Hall must persuade us that the OCCA

unreasonably applied federal law in denying his claims on direct appeal. 28

U.S.C. § 2254(d). His arguments, however, are unconvincing. Accordingly, for

substantially the same reasons as the magistrate judge, we deny relief.

      First, as to the jury instruction defining reasonable doubt, the magistrate

judge properly concluded that Hall’s failure to object to the instruction at trial

requires us to review his claim under the fundamental fairness standard. In other

words, Hall must show that the instruction was “so fundamentally unfair as to

deprive [him] of a fair trial.” Nguyen v. Reynolds, 

, 1357 (10th Cir.

1997) (internal quotation omitted). Having reviewed the trial court’s reasonable

doubt instruction and Hall’s arguments against it, we agree with the magistrate

judge and the district court that Hall has not met this burden.

      In his second ground for relief, Hall argues the trial court improperly

instructed the jury concerning the range of potential punishment. Hall’s argument

relies on the assertion that the mandatory minimum sentence for basic cocaine

trafficking at the time of Hall’s offense was lower than it is now (two years rather

than five years) and the trial court’s failure to realize that led to an erroneous

sentencing range by way of: (1) Okla. Stat. tit. 63, § 2-415(D)(1), which doubles

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the mandatory minimum for those convicted of trafficking five or more grams of

cocaine base, thus bringing Hall’s minimum punishment up to ten years

(according to the trial court) or four years (according to Hall); and (2) Okla. Stat.

tit. 21, § 51.1(C), which triples the minimum prison term for three-time felony

offenders, thus raising Hall’s potential punishment to a minimum of thirty years

(according to the trial court) or twelve years (according to Hall).

      Hall’s argument is flawed from the outset. When Hall committed his

offense in March 2005, the mandatory minimum term for cocaine trafficking was

five years, not two. See Okla. Stat. tit. 63, § 2-401(B)(1) (2005) (specifying that

those convicted of narcotics trafficking “shall be sentenced to a term of

imprisonment for not less than five (5) years”). Recognizing this, the magistrate

judge correctly concluded Hall’s sentencing range argument provides no basis for

habeas relief.

      Finally, Hall argues his trial was constitutionally deficient because the trial

court failed to provide a lesser included offense instruction. As the magistrate

judge noted, however, “[t]he Supreme Court has never recognized a federal

constitutional right to a lesser included offense instruction in non-capital cases,

and neither has this court.” Dockins v. Hines, 

, 938 (10th Cir. 2004)

(citation omitted). Indeed, “[o]ur precedents establish a rule of ‘automatic

non-reviewability’ for claims based on a state court’s failure, in a non-capital

case, to give a lesser included offense instruction.” 

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no colorable basis for habeas relief based on the failure to include a lesser

included offense instruction.

      For the reasons set forth above, we DENY the application for a COA,

DENY the motion to proceed in forma pauperis, and DISMISS the appeal.

                                        ENTERED FOR THE COURT

                                        Timothy M. Tymkovich
                                        Circuit Judge




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