Olson v. State of Oklahoma

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 16 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk

ROYCE EARL OLSON, JR.,

Petitioner-Appellant,
No. 98-5095
v.
(D.C. No. CV-96-637-B(J))
(N.D. Okla.)
STATE OF OKLAHOMA,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and LUCERO, Circuit Judges.

Proceeding pro se, Royce Earl Olson, Jr., applies for a certificate of

appealability (COA) to challenge the district court’s denial of his 28 U.S.C. §

2254 petition for a writ of habeas corpus. In addition, Olson moves for 1)

reconsideration of our previous denial of his motion for court-appointed counsel

*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
on appeal; 2) an appeal conference “to settle this case” pursuant to 10th Cir. R.

33; 3) “summary judgment, on his pending motion for appeal conference”; 4)

amendments to the record on appeal; and 5) accelerated proceedings before this

court. We grant Olson’s motion for accelerated proceedings, deny his other

motions, and deny his application for a COA.

First we address Olson’s motions. We grant his motion for accelerated

proceedings and consider his other motions and application for a COA at this

time. We deny Olson’s motion for reconsideration of our previous denial of his

request for court-appointed counsel on appeal. Considering “the merits of the

litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s

ability to present his claims, and the complexity of the legal issues raised by the

claims,” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995), we find that

Olson has presented no compelling reason for his request. Cf. Johnson v. Avery,

393 U.S. 483, 488 (1969) (noting that there is no obligation on federal courts to

appoint counsel “to prisoners who indicate, without more, that they wish to seek

post-conviction relief”). We deny Olson’s motion for an appeal conference “to

settle this case” pursuant to 10th Circuit R. 33. We deny Olson’s motion for

summary judgment on his motion for an appeal conference. Finally, we deny

Olson’s motion for amending the record on appeal, because the evidence Olson

proffers was not submitted below to the district court. See Fed. R. App. P. 10

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(“The record on appeal consists of the original papers and exhibits filed in the

district court, the transcripts of the proceedings, and a certified copy of the docket

entries . . .”) (emphasis added); see also Boone v. Carlsbad Bancorporation, Inc.,

972 F.2d 1545, 1549 n.1 (10th Cir. 1992).

With regard to Olson’s application for a COA, we note that Olson must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In his application, Olson raises three claims: prosecutorial

misconduct during the sentencing phase of his trial, double jeopardy, and being

sentenced for a crime different from that of conviction. In his brief, he raises two

additional claims: inadequate state appellate counsel, and error in the district

court’s denial of his request for appointed counsel.

We find that Olson has failed to make a substantial showing of the denial

of a constitutional right. First, we will not address Olson’s claims that he was

subjected to double jeopardy, that he was sentenced for a crime different from

that of conviction, and that his state appellate counsel was inadequate, as Olson

failed to raise these claims below. See Walker v. Mather (In re Walker), 959 F.2d

894, 896 (10th Cir. 1992). 1 Second, we do not find the district court’s denial of

court-appointed counsel to be an abuse of discretion, see Rucks, 57 F.3d at 979,

1
Moreover, Olson’s claim that he was sentenced for a crime different from
that of conviction apparently depends on the evidence he presents in his motion
for new evidence, which we deny.

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much less a violation of constitutional magnitude. Third, just as the magistrate

and district court below did, we find no merit to Olson’s argument that

prosecutorial misconduct infected Olson’s state sentencing.

Accordingly, we DENY Olson’s application for a certificate of

appealability.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

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