                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 22, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 C ECILIO P. FA BELA ,

              Petitioner-A ppellant,                    No. 06-6117
       v.                                             (W .D. Oklahoma)
                                                   (D.C. No. CIV-05-799-L)
 RON W ARD, W arden,

              Respondent-Appellee.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Cecilio Fabela, an Oklahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s decision

dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus. M r. Fabela

also seeks to proceed in forma pauperis (“IFP”). In his § 2254 petition, M r.

Fabela raised seven claims regarding denial of due process, ineffective assistance

of counsel, and the prosecution’s failure to disclose a toxicology report favorable

to his defense. For substantially the same reasons set forth by the district court in

its well-reasoned order, we deny M r. Fabela’s application for a COA, deny his

request to proceed IFP, and dismiss this matter.
                                 I. BACKGROUND

      M r. Fabela was charged in Oklahoma state court with first degree murder

for the death of his wife, and was sentenced to life imprisonment without the

possibility of parole. His conviction and sentence were affirmed on direct review.

M r. Fabela also sought postconviction relief before the O klahoma state courts,

which was denied.

      In his § 2254 petition, and before us, M r. Fabela raises seven propositions

of error. He contends: (1) he was denied an impartial jury because the State

exercised its peremptory challenges to exclude potential jurors on the basis of

race in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court’s

refusal to give M r. Fabela’s requested jury instructions on issues related to

sentencing violated his Fourteenth Amendments due process rights; (3) the

cumulative effect of various trial errors and prosecutorial misconduct denied him

a fundamentally fair trial; (4) M r. Fabela’s sentence of life without parole is

excessive and violates the Eighth Amendment; (5) M r. Fabela received ineffective

assistance of trial and (6) appellate counsel; and (7) the State failed to disclose a

toxicology report in violation of Brady v. M aryland, 373 U.S. 83 (1963). M r.

Fabela did not raise the ineffective assistance claims or the Brady claim until he

filed his post-conviction proceedings in state court.

      The magistrate judge recommended dismissal of each of the above claims

and recommended the denial of habeas relief. The district court adopted the

                                           2
magistrate judge’s report and recommendation, and denied M r. Fabela’s

application for a certificate of appealability. For substantially the same reasons

provided in the magistrate judge’s thorough and well-reasoned report and

recommendation, we reject M r. Fabela’s arguments.

                                   II. DISCUSSION

      A COA can issue only “if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). A petitioner is entitled

to federal habeas relief only if the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or “was based on an

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

State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

      W e hold that the Oklahoma Court of Criminal Appeals’ application of the

Batson burden-framew ork was not contrary to nor an unreasonable application of

clearly established law. See Rice v. Collins, 126 S. Ct 969, 976 (2006)

(“Reasonable minds reviewing the record might disagree about the prosecutor's

credibility, but on habeas review that does not suffice to supersede the trial

                                           3
court’s credibility determination.”). As to the jury instructions claim, we agree

that the Oklahoma Court of Criminal Appeals’ adjudication of this issue was not

an unreasonable application of Supreme Court precedent. As to the cumulative

error claim, the Oklahoma Court of Criminal Appeals’ resolution of this issue is

subject to deference, and we agree that any trial errors did not render M r.

Fabela’s trial fundamentally unfair, given the weight of the evidence against him.

W e agree that the Eighth Amendment claim based on an excessive sentence

should also be denied.

      As to the ineffective assistance of trial counsel claim, we agree with the

magistrate judge and district court that M r. Fabela cannot show cause for his

procedural default of this claim, not can he demonstrate that failure to consider

the claim will result in a fundamental miscarriage of justice. See Coleman v.

Thom pson, 501 U.S. 722, 750 (1991); English v. Cody, 146 F.3d 1257, 1259 (10th

Cir. 1998).

      As to the ineffective assistance of appellate counsel, we agree with the

detailed analysis of the magistrate judge that the omitted issues are meritless. See

Rec. doc. 15 at 27-35 (M ag. Rep. and Recommendation, filed Jan. 30, 2006).

Finally, with respect to the Brady claim, M r. Fabela alleged ineffective assistance

of appellate counsel as cause to overcome the procedural bar. W e agree with the

magistrate judge’s examination of the merits of this claim. M r. Fabela failed to

demonstrate that there existed a toxicology report not disclosed by the State.

                                          4
      W e have carefully reviewed M r. Fabela’s brief, the magistrate judge’s

report and recommendation, district court’s disposition, and the record on appeal.

Nothing in the facts, the record on appeal, or M r. Fabela’s filings raises an issue

which meets our standards for the grant of a COA. For substantially the same

reasons set forth by the district court, we are not persuaded that jurists of reason

would disagree with the district court’s disposition of M r. Fabela’s § 2254

petition.

                                 III. CONCLUSION

      W e DENY M r. Fabela’s request for a certificate of appealability, deny his

motion to proceed IFP, and DISM ISS the matter.


                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




                                           5
