F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 7 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
COURTNEY M. SCOTT, JR.,
Petitioner-Appellant,
No. 98-6377
v. (W. District of Oklahoma)
(D.C. No. 98-CV-3-A)
RON WARD,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on Courtney M. Scott’s pro se application for
a certificate of appealability (“COA”) and request to proceed in forma pauperis
*
This order and judgment is not binding precedent, except under the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. Scott seeks a COA so that he can appeal the district court’s denial of
Scott’s 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A)
(providing that an appeal cannot be taken from a “final order in a habeas corpus
proceeding in which the determination complained of arises out of process issued
by a State court” unless the petitioner first obtains a COA). To be entitled to a
COA, Scott must make “a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Scott 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) .
In his § 2254 petition, Scott sought to challenge his conviction, upon a
plea of guilty, to murder in the first degree after former conviction of three or
more felonies. Raising four separate grounds for relief, Scott alleged as follows:
(1) his trial counsel rendered ineffective assistance of counsel by allowing him to
plead guilty to murder under a statute that had been repealed; (2) the prosecutor
violated Scott’s due process rights by prosecuting him under a repealed statute;
(3) the trial court “erred” in allowing Scott to be convicted under a repealed
statute; and (4) he was being illegally confined after being convicted under a
repealed statute. Scott’s petition was referred to a magistrate judge for
preparation of a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. §
-2-
636(b)(1)(B). In the R&R, the magistrate recommended that Scott’s petition be
denied as procedurally barred pursuant to Coleman v. Thompson , 501 U.S. 722,
750 (1991), because Scott had failed to raise these claims until his third petition
for state post-conviction relief. Upon de novo review, the district court adopted
the R&R and further noted that Scott’s allegations of error were based on nothing
more than a mere “scrivener’s error” in the sentencing form used by the state trial
court, which error had absolutely no effect on Scott’s substantive rights.
This court has undertaken a close review of Scott’s application for a COA
and appellate brief, the magistrate judge’s R&R, the district court Order, and the
entire record on appeal. That review demonstrates that the district court’s
resolution of Scott’s claims is not reasonably debatable, subject to a different
resolution on appeal, or deserving of further proceedings. See Barefoot , 463 U.S.
at 893 & n.4. Accordingly, Scott has not made a substantial showing of the denial
of a constitutional right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(2).
Scott’s application for a COA is hereby DENIED for substantially those reasons
set out in the magistrate judge’s R&R dated August 13, 1998, and the district
court Order dated September 14, 1998; this appeal is therefore DISMISSED.
Scott’s request to proceed in forma pauperis on appeal is DENIED as moot. 1
1
Scott’s “Motion to Supplement the Record” with materials not before the
district court, which materials do not relate to any one of the four issues raised in
Scott’s § 2254 petition before the district court, is DENIED.
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ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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