Larry T. Brown, Petitioner-appellant, v. R. Michael Cody; Attorney General of the State of Oklahoma,respondents-appellees, 48 F.3d 1231 (10th Cir. 1995)

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. We issue a certificate of probable cause to proceed on appeal, and grant petitioner's motion to proceed in forma pauperis in order to reach the merits of the case.

Petitioner Larry Tyrone Brown appeals the district court's denial of his 2254 petition for writ of habeas corpus. He asserts that during deliberations in the sentencing phase of his trial the jury improperly considered the possibility of parole.²  The district court denied relief, accepting the magistrate judge's finding that no federal constitutional violation was alleged or proven. Pulley v. Harris, 465 U.S. 37, 41 (1984).

The district court first determined that a jury's consideration of parole during the sentencing phase of a trial, in violation of Oklahoma state law, would implicate no federal constitutional rights. R. doc. 16. at 1-2 (citing, inter alia, California v. Ramos, 463 U.S. 992 (1983) (if jury considered possibility of executive clemency such consideration not a violation of federal constitutional rights); Drew v. Collins, 964 F.2d 411, 415-16 (5th Cir. 1992) (jury consideration of parole improper under state law, but absent showing that prejudiced right to fair trial no federal constitutional violation), cert. denied, 113 S. Ct. 3044 (1993); Dobbs v. Zant, 963 F.2d 1403, 1411 (11th Cir. 1991) (defendants "in the sentencing phase of a capital murder trial have no federal right to prevent jury consideration of the possibility that [defendant] will be paroled if sentenced to life imprisonment"), rev'd on other grounds, 113 S. Ct. 835 (1993)).

We have no need to determine whether we agree with these courts, as the district court also determined that petitioner failed to allege or show that the jury actually considered the possibility of parole. Because the court refused to answer the questions, and there is no record evidence that the jury considered either accurate or inaccurate information on the possibility of parole, we agree with the district court's determination that the Oklahoma Court of Criminal Appeals' refusal to reduce petitioner's sentence did not violate his federal due process rights.

AFFIRMED.

The mandate shall issue forthwith.