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
CORTEZ DARNELL WALTERS,
Petitioner-Appellant,
v. No. 97-6138
(D.C. No. CIV-96-2092)
STEVEN KAISER; STATE OF (W.D. Okla.)
OKLAHOMA; THE ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is
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This order and judgment is not binding precedent, except under the doctrines of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.
Petitioner Cortez Darnell Walters, a state prisoner appearing pro se, asks
this court to grant him a certificate of appealability to appeal the district court's
order dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254. We
deny petitioner a certificate of appealability and dismiss the appeal.
This court will issue a certificate of appealability when a petitioner makes a
substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). In his habeas petition, Walters argued his convictions violated the
Double Jeopardy Clause of the Fifth Amendment, and his constitutional rights
were violated when the district court permitted endorsement of a witness during
trial. 1
Double Jeopardy
Walters argues his convictions for forgery and concealing stolen property
violated the Double Jeopardy Clause because both charges arose from the same
occurrence or transaction. Double jeopardy is not violated by conviction for two
offenses arising from the same occurrence or transaction as long as each offense
requires proof of a fact that the other does not. See Blockburger v. United States,
284 U.S. 299, 304 (1932); see also Yparrea v. Dorsey, 64 F.3d 577, 579-80 (10th
Cir. 1995). The crimes of forgery and concealing stolen property require proof of
Walters apparently also seeks relief based on an allegedly defective indictment
1
or information. However, we will not address that issue because he has not exhausted his
state remedies. See 28 U.S.C. § 2254(b)(1)(A).
-2-
different facts. Compare Okla. Stat. tit. 21, § 1713, with Okla. Stat. tit. 21, §
1713. Therefore, Walters' convictions do not violate the Double Jeopardy Clause.
Endorsement of Witness
Walters claims his constitutional rights were violated when the trial court
endorsed a witness during the punishment stage of the proceedings. The witness
identified and authenticated Walters' previous convictions. This testimony was
necessary to enhance Walters' sentence based on his previous convictions.
Walters was well aware that the state intended to present evidence of previous
convictions as the indictment indicated the state intended to seek enhancement.
Oklahoma law permits endorsement of a witness at any time during trial. See
Okla. Stat. tit. 22, § 384. In affirming Walters' convictions on direct appeal, the
Oklahoma Court of Criminal Appeals found Walters had suffered no prejudice as
a result of the late endorsement.
We conclude Walters has failed to make a substantial showing of the denial
of a constitutional right required for the issuance of a certificate of appealability
under 28 U.S.C. 2253(c)(2). We therefore DENY him a certificate of
appealability and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-3-