Barbee v. Calbone, 10th Cir. (2001)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
AUG 3 2001
PATRICK FISHER
Clerk
TROY GENE BARBEE,

Petitioner-Appellant,
v.
SAM CALBONE; THE ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
No. 00-7104
(D.C. No. 98-CV-565-S)
(E.D. Okla)
Respondents-Appellees.
ORDER AND JUDGMENT
Before EBEL , PORFILIO, and KELLY , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Troy Gene Barbee appeals the district courts order denying
relief in this case filed pursuant to 28
U.S.C. 2254. We granted Petitioners
motion for a certificate of appealability limited to the issue of whether the

evidence was sufficient to support the jurys verdict. We affirm.
In 1996, Petitioner was convicted in state court of armed robbery and
shooting with intent to injure after former conviction of a felony. He was
sentenced to fifteen years imprisonment on count one and ten years on count two
to be served consecutively. His convictions and sentences were affirmed on
direct appeal.
In his 2254 petition, Petitioner alleged that insufficient evidence was
adduced to convict him, he received ineffective assistance of both trial and
appellate counsels, and he was convicted in violation of double jeopardy. He also
asserted his trial should have been severed from that of his co-defendant, perjured
testimony was presented, and various state law violations occurred.
At trial, the state presented evidence supporting the charge that Petitioner
drove the vehicle used in the robbery of a victim who was stopped by the side of
the road after his car had broken down. The vehicle pulled up beside the victims
car at which time Petitioners co-defendant reached through the window of the
vehicle and took possession of the victims wallet. As the vehicle pulled away,
the co-defendant fired one shot at the victim. Because it was dark, the victim
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could not see Petitioner, the alleged driver of the vehicle. Highway patrol
officers stopped the vehicle several hours later on suspicion of drunken driving.
Petitioner was driving the vehicle at the time of the stop. A gun was found inside
the vehicle along with various credit cards belonging to the victim.
At trial, the victim identified Petitioners co-defendant as the person who
took his wallet and testified that the shot came from the passenger side of the
vehicle. Petitioner testified at trial and stated that he had spent the day and
evening at his father-in-laws home, clearing 20-30 trees, digging postholes by
hand and setting 16 posts, until leaving several hours after the robbery with his
co-defendant to get some beer. He denied committing the crime.
After exhausting his state court remedies, Petitioner brought this habeas
action. The district court denied relief, holding Petitioner presented no issues
showing that he had been denied any constitutional rights which would entitle him
to habeas relief. On appeal, Petitioner argues the district court erred in this
ruling. We granted a certificate of appealability only on the issue of whether
sufficient evidence was presented to support his conviction. As to Petitioners
remaining contentions, we have reviewed the district courts judgment in light of
his submissions to this court and the record on appeal. Petitioner has failed to
meet the parameters established in 28 U.S.C. 2254(d)(1)(2) for issuance of a
certificate of appealability on these remaining issues.
-3-
Petitioner argues the evidence presented at trial was insufficient to convict

him because the victim could not identify him or say that he had any of the
characteristics of the driver of the getaway car. He contends the evidence
presented was admissible only against his co-defendant, not against him.
Petitioner notes the evidence only showed he was in the car with his co-defendant
three hours after the robbery, but not at the time of the robbery. He further
asserts he did not own the car or the gun nor was he aware the gun was in the car.
He contends there was no evidence that the car he was later driving was actually
used in the robbery. Finally, he notes he had an alibi for the time of the robbery.
Under 28 U.S.C. 2254(d), as amended by AEDPA, when a state court has
decided issues on the merits, we may grant habeas relief only if a petitioner can
show that 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,
id. 2254(d)(1), or was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding, id. 2254(d)(2). Under federal law, we review a sufficiency of the
evidence challenge to determine whether, after viewing the evidence in the light
most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia ,
443 U.S. 307, 319 (1979). The determination of the witnesses credibility lies
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within the province of the jury. A reviewing court may not weigh conflicting
evidence nor consider the credibility of witnesses. Rather, the Court must accept
the jurys resolution of the evidence as long as it is within the bounds of reason.
Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996) (quotation omitted
).
Petitioner testified he did not commit the crimes. However, Petitioners codefendant admitted on cross-examination that on the date in question Petitioner
was with him from before dark on. II Tr. 358-59. Likewise, Petitioner admitted
that he was with his co-defendant from dusk to 10:00 p.m. II Tr. 380. As noted,
the victim identified the co-defendant as the man that pointed the gun at his head
and took his wallet. I Tr. 156.
Petitioner presented an alibi witness who testified as to the details of
Petitioners visit to her home on the night of the robbery in December. On
cross-examination, however, she admitted she had previously told the district
attorney the visit had been in January. She also testified she could remember the
meal she had cooked that night, but not any other night that week. Further, that
day was not any special day which would have caused her to remember it.
-5-
The evidence was sufficient for a rational juror to find Petitioner guilty of
the crimes beyond a reasonable doubt.
Accordingly, the judgment of the United
States District Court for the Eastern District of Oklahoma is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.

Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

TROY GENE BARBEE,

Before EBEL , PORFILIO, and KELLY , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

U.S.C. 2254. We granted Petitioners

motion for a certificate of appealability limited to the issue of whether the

Petitioner argues the evidence presented at trial was insufficient to convict

id. 2254(d)(1), or was based on an unreasonable

any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Accordingly, the judgment of the United

States District Court for the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

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