UNITED STATES COURT OF APPEALS
Filed 7/5/96 TENTH CIRCUIT
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TONY LAMAR VANN, )
)
Petitioner-Appellant, )
)
v. ) Nos. 95-5267 and 95-5239
) (D.C. No. 95-C-518-C)
STATE OF OKLAHOMA and MIKE ) (N. Dist. of Okla.)
ADDISON, Warden, )
)
Respondents-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and appellate record, this panel
has determined unanimously to honor the parties’ request for a
decision on the briefs without oral argument. See Fed. R. App. P.
34(f); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Petitioner-appellant Tony Lamar Vann (Vann), appears pro se.
He is a convicted felon incarcerated in the Mack Alford
*
This Order and Judgment is not binding precedent, except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 Tenth Cir. R. 36.3.
Correctional Center under the jurisdiction of the State of Oklahoma
Department of Corrections (DOC). This matter is before us on
Vann’s motion to proceed without payment of fees and an
application for a certificate of probable cause to appeal the
district court’s dismissal of his petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254.1
Vann was convicted in Osage County, Oklahoma, on September 23,
1994, for possession of a firearm after former conviction of a
felony in Harris County, Texas, and obstructing an officer. Vann
was sentenced to seven years imprisonment in the DOC and fined
$5,000 for the felony. He was sentenced to one year in the County
Jail and fined $500 for the misdemeanor. On June 8, 1995, Vann
filed a petition in federal district court seeking habeas relief
pursuant to 28 U.S.C. § 2254 in which he challenged his Osage
County conviction, the use of his prior Harris County conviction,
and the effectiveness of his appellate counsel who refused to
1
The Antiterrorist and Effective Death Penalty Act of
1996 (Act), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which
became effective April 24, 1996, altered the procedures for
habeas corpus appeals. As amended, the law instructs that we may
issue a certificate of appealability, formerly a certificate of
probable cause, only if the applicant has made a substantial
showing of the denial of a constitutional right. Lennox v.
Evans, No. 96-6041, 1996 WL ___ at __* (10th Cir. June ___,
1996). Prior to the Act, we were to issue a certificate of
probable cause upon a substantial showing of the denial of an
important federal right. Barefoot v. Estelle, 463 U.S. 880, 893
(1983). Inasmuch as the district court’s order and motion for
certificate of probable cause were entered and filed prior to
April 24, 1996, we are governed by the pre-Act standards.
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present critical issues on direct appeal. Respondents, after
noting that Vann’s Osage County conviction was pending before the
Oklahoma Court of Criminal Appeals, moved to dismiss for Vann’s
failure to exhaust his state remedies.
On October 25, 1995, the district court dismissed Vann’s
petition for failure to exhaust state remedies based on his pending
appeal in the Oklahoma Court of Criminal Appeals. On January 8,
1996, Vann filed a motion in this court for leave to proceed
without prepayment of costs or fees and for a certificate of
probable cause. On February 7, 1996, the Oklahoma Court of
Criminal Appeals affirmed Vann’s conviction and sentence. We grant
Vann’s motions simply in order to reach the merits.
On appeal, Vann contends that his fifth and fourteenth
amendment rights were violated when the Osage County District Court
relied on a Texas conviction which was 10 years old to convict him
as a felon in possession of a firearm after former conviction of a
felony. He also alleged former jeopardy based on the Texas
conviction.
We review the sufficiency of a complaint/petition de novo, and
will uphold a dismissal when it appears that the petitioner can
prove no set of facts in support of his claims that would entitle
him to relief. Roman v. Cessna Aircraft Co., 55 F.3d 542, 543
(10th Cir. 1995).
“There is no automatic right to appeal a district court’s
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order denying federal habeas corpus relief.” Smith v. Secretary
Department of Corrections, 50 F.3d 801, 820 (10th Cir. 1995), cert.
denied, ___U.S.___ (1995). “By enacting § 2253 [28 U.S.C.],
Congress authorized a conditional right to appeal conditioned upon
the habeas petitioner first obtaining a certificate of probable
cause.” Id. A habeas petitioner is entitled to a certificate of
probable cause only upon “a substantial showing of the denial of an
important federal right by demonstrating that the issues raised are
debatable among jurists, that a court could resolve them
differently, or that the questions deserve further proceedings.”
Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994) (citing Barefoot
v. Estelle, 463 U.S. 880 (1983).
“A threshold question that must be addressed in every habeas
case is that of exhaustion.” Harris v. Champion, 15 F.3d 1538,
1554 (10th Cir. 1994). Federal habeas relief is not available to
a state prisoner “unless it appears that the applicant has
exhausted the remedies available in the courts of the State or that
there is either an absence of available State corrective process or
the existence of circumstances rendering such process ineffective
to protect the rights of the prisoner.” 28 U.S.C. § 2254(b). “The
burden of showing exhaustion of state remedies in accordance with
the statute rests on the petitioner seeking federal habeas relief.”
Bond v. State of Oklahoma, 546 F.2d 1369 (10th Cir. 1976).
We AFFIRM for substantially the reasons set forth in the
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district court’s Order of dismissal, without prejudice, dated
October 24, 1995.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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