F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 1 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

IRA B. SPELLS, JR.,

Petitioner-Appellant,

v. No. 99-6432 (W.D. Okla.) STEPHEN W. KAISER, (D.Ct. No. 98-CV-1120-T)

Respondent-Appellee. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, KELLY, and MURPHY, 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.

Appellant Ira B. Spells, Jr., a state prisoner appearing pro se, appeals the

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. district court’s decision dismissing his petition filed pursuant to

, and denying his request for a certificate of appealability. In his petition,

Mr. Spells claimed insufficient evidence supported his conviction for one count of

distribution of cocaine base. We deny Mr. Spells’ request for a certificate of

appealability and dismiss his appeal.

The State tried Mr. Spells for one count of conspiracy to distribute cocaine

base (Count 1) and one count of distribution of cocaine base (Count 2). The jury

convicted Mr. Spells on Count 2. Mr. Spells unsuccessfully appealed his

conviction to the Oklahoma Court of Criminal Appeals, which held sufficient

evidence supported his conviction.

Shortly thereafter, Mr. Spells filed his § 2254 petition claiming insufficient

evidence supported his conviction. The federal district court referred the matter

to a magistrate judge who issued a Report and Recommendation, recommending

dismissal of Mr. Spells’ petition. In making this determination, the magistrate

judge articulated the federal courts’ limited standard of review for reviewing the

sufficiency of evidence in state habeas actions and the applicable state law under

which the jury convicted Mr. Spells. Applying these principles, the magistrate

judge viewed the evidence presented at trial in the light most favorable to the

-2- prosecution, as provided below.

On May 18, 1994, a government informant named Kevin Green attempted

to purchase illegal drugs at apartments located in Oklahoma City, Oklahoma. As

Mr. Green drove by the apartment complex, Mr. Spells “flagged” him down –

which is often routine practice for individuals initiating a drug sale. After Mr.

Spells approached the vehicle, Mr. Green asked Mr. Spells if he had a “proper

forty,” meaning $40 worth of cocaine base. Mr. Spells replied “yeah,” entered

Mr. Green’s vehicle, and stated the person with the cocaine base (Mr. Sango)

entered an apartment but would return soon. Mr. Spells said he was also waiting

on “some.” Thereafter, Mr. Spells called for Mr. Sango to come to Mr. Green’s

vehicle, and Mr. Spells exited the vehicle. Mr. Sango entered the vehicle and

sold $40 worth of cocaine base to Mr. Green. After Mr. Sango exited the vehicle,

he called to Mr. Spells and they walked away together.

The magistrate judge determined this evidence could lead a rational jury to

find all the essential elements of distribution of cocaine base beyond a reasonable

doubt, and constituted sufficient evidence to support Mr. Spells’ conviction.

After reviewing Mr. Spells’ objections thereto, the district court adopted the

magistrate judge’s Report and Recommendation, dismissed Mr. Spells’ petition

-3- and denied his request for a certificate of appealability.

On appeal, Mr. Spells raises the same issue addressed by the district court

concerning the sufficiency of the evidence supporting his conviction. He also

raises, for the first time on appeal, an issue concerning the jury instructions given

by the state court, claiming:

The jury instructions were that Petitioner could not be found guilty of Count 2 without being found guilty of both Counts 1 and 2. I could not be found guilty of Count 1 and not guilty of Count 2, but not guilty of only Count 2. I was however, found guilty of Count 2. The jury did not follow the instructions.

We are unable to rule on the issue concerning the sufficiency of the

evidence to support Mr. Spells’ conviction. In reciting the facts of this case, the

magistrate judge carefully referenced the record and evidence he viewed as most

favorable to the prosecution, including the testimony of Mr. Green, a video tape

from inside Mr. Green’s vehicle, and the testimony of an Oklahoma City Police

Officer. However, Mr. Spells did not provide this court a copy of the transcripts

or video on which the magistrate judge relied. When the record fails to include

copies of the documents necessary to decide an issue on appeal, we are unable to

rule on that issue because to do so would be pure speculation. See United States

v. Vasquez,

(10th Cir. 1993). Mr. Spells, as the appellant, is

responsible for insuring the documents supporting his appeal are part of the

-4- record.

. Absent the documents necessary to review or substantiate Mr.

Spells’ allegation of error, we must defer to the state and federal district courts’

decisions.

For that reason, we must agree with the magistrate judge’s

evaluation of the evidence as cited and determination the evidence sufficiently

supports Mr. Spells’ conviction.

The same is true with respect to Mr. Spells’ unsupported and nonsensical

argument concerning the jury instructions given at trial. First, he failed to

provide this court a copy of the jury instructions at issue for our review. Second,

despite the liberal construction afforded Mr. Spells’ pro se pleadings, we

generally will not consider an argument presented for the first time on appeal,

Walker v. Mather (In re Walker),

(10th Cir. 1992), or construct

an argument for Mr. Spells absent coherent discussion of the issue in question.

See Drake v. City of Fort Collins,

(10th Cir. 1991).

For the these reasons, Mr. Spells fails to make a “substantial showing of

the denial of a constitutional right” required to obtain a certificate of

-5- appealability.

(c)(2). Accordingly, we deny his request for a

certificate of appealability and DISMISS his appeal.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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