Winchester v. Jones, No. 11-6175 (10th Cir. 2011)
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Petitioner Kevin Winchester sought a certificate of appealability (COA) from the Tenth Circuit to challenge a district court's denial of his petition for the writ of habeas corpus. After a jury trial, Petitioner was convicted of first degree murder, and sentenced to life imprisonment without the possibility of parole. Petitioner raised three issues on direct appeal: (1) his Sixth Amendment right of confrontation was violated when the trial court permitted the introduction of the victim’s petition for a protective order; (2) the judge erroneously refused to instruct the jury on the lesser-included offense of first degree heat of passion manslaughter; and (3) the sentence imposed was excessive. The Oklahoma Court of Criminal Appeals affirmed the conviction in an unpublished opinion. Petitioner then filed an application for post-conviction relief with the Oklahoma district court, raising five claims of error. With the exception of allegations of ineffective assistance of trial and appellate counsel, the court concluded Petitioner's claims were barred from post-conviction review because he was attempting to re-argue issues already raised on direct appeal or issues that could have been raised on direct appeal. Upon review, the Tenth Circuit concluded that Petitioner had not made a substantial showing of the denial of his constitutional rights. The Court denied Petitioner's request for a COA and dismissed his appeal.
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