F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 10 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
PETER JAMES ROBINSON,
Petitioner-Appellant,
v. No. 97-6232
(W. District of Oklahoma)
RON WARD; THE ATTORNEY (D.C. No. CIV-96-1851-C)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has unanimously determined that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Peter Robinson, appearing pro se and in forma pauperis, appeals the district
court’s denial of his petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. In his habeas corpus petition, Robinson challenges two Oklahoma
state convictions resulting from pleas of guilty to escape from a state penitentiary
and possession of a firearm. Robinson alleges that his sentences for those crimes
were improperly enhanced by a void former conviction and that the sentences he
received were thus greater than that allowed by law.
The district court referred Robinson’s petition to a magistrate judge for
initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B). In a thorough
and well-researched Report and Recommendation, the magistrate judge
recommended that Robinson’s petition be dismissed on the grounds of procedural
bar. The magistrate judge noted that the state courts had denied Robinson’s
application for post-conviction relief on the grounds that Robinson should have
raised his objections to the sentence enhancement on direct appeal. The
magistrate judge moved on to analyze the state courts’ application of procedural
bar, finding that application to be both “independent” and “adequate.” Finally,
the magistrate judge conducted an extensive analysis of Robinson’s claim of
ineffective assistance of counsel and ultimately concluded that even if Robinson’s
claims were true, they did not amount to either cause or prejudice sufficient to
overcome the procedural bar. After Robinson objected to the Report and
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Recommendation, the district court conducted a de novo review of the record and
adopted the Report and Recommendation. 1
The case is before this court on Robinson’s application for a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals
from [] the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court . . . .”). To be entitled
to a certificate of appealability, Robinson must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Robinson can make
such a showing by demonstrating the issues raised are debatable among jurists, a
court could resolve the issues differently, or that the questions presented deserve
further proceedings. Barefoot v. Estelle, 463 U.S. 880, 892-893 & n.4. (1983);
Lennox v. Evans, 87 F.3d 431, 433-34 (10th Cir. 1996), cert. denied, 117 S. Ct.
749 (1997).
1
In his appellate brief, Robinson contends that this court must reverse and
remand because the district court failed to conduct a de novo review of the Report
and Recommendation. This assertion is clearly without merit. In adopting the
Report and Recommendation, the district court stated as follows: “Accordingly,
having reviewed all matters of record de novo, the Court finds that the Report and
Recommendation of the Magistrate Judge is correct in all particulars and is hereby
affirmed.”
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This court has thoroughly reviewed Robinson’s appellate brief and
application for a certificate of appealability, the magistrate judge’s excellent
Report and Recommendation, the district court’s Order, and the entire record on
appeal. Based on that review, we conclude that Robinson has not made a
substantial showing of the denial of an important federal right for the reasons set
forth in the magistrate judge’s Report and Recommendation. Accordingly, this
court DENIES Robinson’s application for a certificate of appealability and
DISMISSES this appeal. 28 U.S.C. § 2253(c)(2).
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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