FILED
United States Court of Appeals
Tenth Circuit
April 29, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TIMOTHY GRIFFITH,
Nos. 10-6027
Petitioner - Appellant, and 10-6050
v. (W.D. Oklahoma)
DAVID PARKER, Warden, (D.C. No. CV-08-00672-W)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These
matters are therefore ordered submitted without oral argument.
Timothy Griffith, a state prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to enable him to appeal the district court’s denial of his 28
U.S.C. § 2254 petition, as well as the denial of his motion to reconsider. Because
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
we find Mr. Griffith is not entitled to a COA to challenge either of the district
court’s orders, we deny him a COA and dismiss these matters.
BACKGROUND
Mr. Griffith was convicted by a jury in an Oklahoma state court of two
counts of attempted first-degree rape and eight counts of sexual abuse of a child.
He was sentenced to five years’ imprisonment on each of the attempted rape
counts and three years’ imprisonment on each of the sexual abuse counts, which
the district court decided to run consecutively. Mr. Griffith appealed his
convictions, raising nine claims for relief, including a challenge to the district
court’s decision to run his sentences consecutively. The Oklahoma Court of
Criminal Appeals (“OCCA”) affirmed Mr. Griffith’s convictions and sentences,
with the exception of one count of attempted rape, which the court reversed and
dismissed.
Mr. Griffith then filed an application for post-conviction relief, arguing that
the trial court’s decision to order consecutive sentences violated his Sixth
Amendment right to have the jury determine his sentence. The state district court
denied Mr. Griffith’s application, concluding that Mr. Griffith had challenged the
propriety of his consecutive sentences on direct appeal, so that consideration of
that issue in post-conviction proceedings was barred by res judicata. Mr. Griffith
appealed once again to the OCCA, arguing that the imposition of consecutive
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sentences violated his Sixth Amendment right to a jury trial and further arguing,
for the first time, that he “was never advised during sentencing that he was being
sentenced under the 85% law.” R. Vol. 1, Part 1, at 18. 1 In denying
Mr. Griffith’s request for post-conviction relief, the OCCA observed that his
convictions and sentences had been affirmed on appeal, and that, accordingly, the
doctrine of res judicata barred the consideration of all issues previously ruled on
and all issues not raised in his direct appeal, but which Mr. Griffith could have
raised in that appeal.
Mr. Griffith then brought the instant § 2254 petition, alleging (1) the trial
court lacked the authority to impose consecutive sentences and that the court’s
imposition of such sentences violated his right under the Sixth and Fourteenth
Amendments to have the jury determine his punishment; and (2) he was never
advised that he would be sentenced under the 85% law. The district court
rejected these claims and denied Mr. Griffith’s request for a COA to appeal its
decision. 2
1
The 85% law refers to the fact that, under Oklahoma law at the time,
defendants convicted of certain enumerated offenses must “serve not less than
eighty-five percent (85%) of any sentence of imprisonment imposed by the
judicial system prior to becoming eligible for consideration of parole.” See Okla.
Stat. Ann. tit. 21, § 13.1.
2
More precisely, the district court referred this case to a magistrate judge,
who issued a report and recommendation to dismiss the § 2254 petition, which the
district court then adopted.
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With respect to Mr. Griffith’s first argument, the district court declined to
determine whether it was procedurally barred, but rather, addressed the argument
on its merits. See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004)
(“When questions of procedural bar are problematic . . . and the substantive claim
can be disposed of readily, a federal court may exercise its discretion to bypass
the procedural issues and reject a habeas claim on the merits.”). After noting that
Mr. Griffith’s argument about the unconstitutionality of his consecutive sentences
was based upon a series of Supreme Court cases, beginning with Apprendi v. New
Jersey, 530 U.S. 466 (2000), and continuing with Blakely v. Washington, 542
U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), the district
court relied upon a recent Supreme Court case specifically addressing the
authority of trial judges to decide whether a sentence should be served
consecutively or concurrently, Oregon v. Ice, 129 S. Ct. 711, 714 (2009), to
conclude that Mr. Griffith’s challenge to his consecutive sentences lacked merit. 3
With respect to his second argument, regarding his awareness of the 85%
law, the district court held that Mr. Griffith had failed to raise this issue on direct
3
In Ice, the Supreme Court observed that its decisions in Apprendi and
Blakely held “that it is within the jury’s province to determine any fact (other
than the existence of a prior conviction) that increases the maximum punishment
authorized for a particular offense.” Ice, 129 S. Ct. at 714. The question
presented in Ice was whether it was also solely within the jury’s province to
determine whether sentences should be served concurrently or consecutively. The
Court held it was not: “The decision to impose sentences consecutively is not
within the jury function that ‘extends down centuries into the common law.’” Ice,
129 S. Ct. at 717 (quoting Apprendi, 530 U.S. at 477).
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appeal or in his initial post-conviction state court proceeding. Rather, he raised
this issue for the first time in his post-conviction appeal to the OCCA, which
found that claim procedurally barred and, accordingly, did not address the merits
of the claim. The district court therefore considered this claim procedurally
barred, unless Mr. Griffith could establish cause for and prejudice from holding
the claim procedurally barred, or demonstrate that the failure to address it would
result in a fundamental miscarriage of justice. The court concluded that
Mr. Griffith had shown neither cause nor prejudice, nor demonstrated that a
fundamental miscarriage of justice would result, and it denied relief on this claim.
The district court subsequently denied Mr. Griffith’s request for a COA, as well
as his request that the court reconsider its denial of a COA. Mr. Griffith seeks a
COA from this court to enable him to appeal those district court orders.
In his quest to obtain a COA, Mr. Griffith repeats his general arguments
that the jury must determine his sentence, that he was never advised of the 85%
rule, and that he did not himself prepare his direct appeal and thus cannot be held
responsible or accountable for what is or is not contained in that appeal.
DISCUSSION
The issuance of a COA is jurisdictional. We will issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make this showing, Mr. Griffith must demonstrate
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“that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a
claim on its merits, the “petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. When the district court dismisses a petition on procedural grounds,
the applicant must not only make a substantial showing of the denial of a
constitutional right; he must also demonstrate that the district court’s “dismissal
on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petitioner should not be allowed to proceed
further.” Id. at 484.
As indicated above, the district court resolved one of Mr. Griffith’s
arguments on its merits and one on procedural grounds. We agree with the
court’s analysis of both issues, and we cannot improve upon its thorough and
thoughtful discussion. Accordingly, for substantially the reasons set forth in the
district court’s decision, we deny Mr. Griffith a COA to enable him to appeal the
district court’s orders. We also deny Mr. Griffith permission to proceed on
appeal in forma pauperis.
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CONCLUSION
For the foregoing reasons, we DENY Mr. Griffith a COA and we DENY
him the right to proceed on appeal ifp.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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