Dennis S. Funkhouser v. James L. Saffle Attorney General of The State of Oklahoma, 986 F.2d 1427, 10th Cir. (1993)
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Scribd Government DocsDennis S. Funkhouser v. James L. Saffle Attorney General of The State of Oklahoma, 986 F.2d 1427, 10th Cir. (1993)
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Scribd Government Docs986 F.
2d 1427
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Dennis S. FUNKHOUSER, Petitioner-Appellant,
v.
James L. SAFFLE; Attorney General of the State of Oklahoma,
Respondents-Appellees.
No. 92-5131.
United States Court of Appeals, Tenth Circuit.
Feb. 3, 1993.
Before LOGAN, JOHN P. MOORE and BRORBY, Circuit Judges.
ORDER AND JUDGMENT*
LOGAN, Circuit Judge.
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 Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Petitioner Dennis Stephen Funkhouser, a prisoner in the Joseph Harp
Correctional Center in Oklahoma, appeals the denial of his petition for writ of
habeas corpus filed pursuant to 28 U.S.C. 2254. He was convicted by a jury
of felony murder and first degree burglary, and received consecutive sentences.
On appeal to the Oklahoma Court of Criminal Appeals, petitioner's first degree
burglary conviction was ordered set aside on the basis that the underlying
burglary merged into the proof required for felony murder. The first degree
murder conviction and sentence were affirmed. Funkhouser v. State, No. F-8570 (Okla.Cr.App.1989) (unpublished).
Petitioner then sought habeas corpus relief in federal court making five
contentions: (1) he was denied due process because his competency hearing
followed his conviction, (2) he was tried and convicted of two crimes arising
from a single transaction, thereby exposing him to double jeopardy, (3) the
record contains insufficient evidence to convict him as charged, (4) cumulative
prosecutorial errors require reversal, and (5) the state court erred in admitting
evidence petitioner committed another crime. All of these issues were raised in
his state appeal following his conviction. The district court denied relief.
Because only federal constitutional errors can be the basis for federal habeas
relief from a state conviction, we can consider only federal constitutional issues
on appeal.
In his briefs on appeal petitioner focuses only on the fact that he was convicted
of two crimes arising out of the same facts, murder and burglary. Even though
the burglary conviction was set aside by the Oklahoma Court of Criminal
Appeals, petitioner asserts his conviction for murder must fall on double
jeopardy grounds. Petitioner argues that because the indictment listed burglary
as count one and felony murder as count two, he was first convicted of
burglary, and, therefore, it violated double jeopardy to convict him of felony
murder, even though the judgment on both counts was rendered in the same
trial. We reject this argument.
It was entirely proper to dismiss the burglary conviction because it was the
underlying felony supporting the felony murder charge, and hence a lesser
included crime. Brown v. Ohio, 432 U.S. 161, 165 (1977); Perry v. State, 764
P.2d 892, 898 (1988). But the sequence of the charges in a single indictment is
of no consequence. See United States v. Combs, 634 F.2d 1295, 1298 (10th
Cir.1980), cert. denied, 451 U.S. 913 (1981). We agree with the district court
that the double jeopardy issue is no longer viable.
We cannot determine whether petitioner intended to preserve for appeal the
other issues raised in the district court by his reference in his appellate brief to
the federal and state courts "improperly determin[ing] that the Appellants
conviction was proper under the harmless error standard of review based upon
statutory guidelines." Appellant's Brief at 2. Because any second petition
raising these issues would be subject to dismissal as successive or on other
grounds, we treat these issues as properly before us. After reviewing the
extensive record, we affirm the district court on all other issues raised in the
district court for substantially the reasons stated in the magistrate judge's
Report and Recommendation of August 23, 1991. We independently reviewed
the transcript of the trial as required by Jackson v. Virginia, 443 U.S. 307, 324
(1979). We agree that the record contains ample evidence for a rational trier of
fact to find petitioner was guilty beyond a reasonable doubt.
8
AFFIRMED.
The mandate shall issue forthwith.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
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