Dewberry v. Patton, 672 F. App'x 821

Milton Dewberry, an Oklahoma inmate, was convicted by jury of second-degree burglary and possession of burglar’s implements; sentenced to 29 years (burglary) and 1 year concurrent (misdemeanor).
On direct appeal, he raised nine grounds; the Oklahoma Court of Criminal Appeals (OCCA) affirmed.
Dewberry filed a 28 U.S.C. § 2254 habeas petition raising two claims: (1) trial court failed to give a lesser-included offense instruction (breaking and entering); (2) evidence was insufficient to prove intent to steal for second-degree burglary.
The district court denied habeas relief and refused a certificate of appealability (COA); Dewberry sought a COA from the Tenth Circuit.
Surveillance video showed Dewberry and a co-defendant tampering with external bars on an air-conditioning unit, then entering a warehouse briefly and leaving empty-handed; owner testified about an alarm and bulky contents; officer testified copper theft motive.
The OCCA concluded the evidence supported an inference Dewberry intended to steal once inside (video of attempting to steal AC, alarm sounded, bulky items unlikely to be moved), and the Tenth Circuit denied a COA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial court’s failure to instruct on lesser included offense (breaking and entering)	Dewberry: due process required giving lesser-included instruction	State: no federal constitutional right to such instruction in non-capital cases; claim non-reviewable on habeas	Denied — no cognizable federal habeas claim; Tenth Circuit applies automatic non-reviewability for non-capital lesser-included instruction claims (Dockins)
Sufficiency of evidence to prove intent to steal for second-degree burglary	Dewberry: evidence insufficient to show intent to steal or commit a felony	State: circumstantial evidence (video of tampering/attempted AC theft, brief entry, alarm, bulky interior contents, police testimony about motive) supports inference of intent	Denied — viewing evidence in prosecution’s favor, rational juror could infer intent; OCCA’s factual findings entitled to deference under §2254(e)(1)

Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004) (no federal right to lesser-included instruction in non-capital cases; automatic non-reviewability on habeas)
Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a certificate of appealability)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of evidence review)
Bradshaw v. Richey, 546 U.S. 74 (2005) (state-court interpretation of state law binds federal habeas courts)
Lowe v. State, 673 P.2d 167 (Okla. Crim. App. 1983) (intent to steal may be proved by circumstantial evidence)