F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 2 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOE BRYANT WILLIAMS,
Petitioner - Appellant,
v. No. 99-7011
(D. Ct. No. 98-CV-37-S)
STEPHEN KAISER, Warden; (E.D. Okla.)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in 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.
Mr. Williams, pro se, appeals the district court’s order denying his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and requests a certificate
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
of appealability. We deny his request for a certificate of appealability pursuant to
28 U.S.C. § 2253(c) and dismiss the appeal.
On February 9, 1995, a jury convicted petitioner of assault with a deadly
weapon, after former conviction of two or more felonies, in Coal County District
Court. He was sentenced to twenty years in prison. Petitioner appealed, and his
case was assigned to an emergency panel of the Oklahoma Court of Criminal
Appeals. On April 3, 1996, the emergency panel reversed petitioner’s conviction
and remanded his case for a new trial. On February 20, 1997, however, the
Oklahoma Court of Criminal Appeals reversed the decision of the emergency
panel and affirmed petitioner’s conviction and sentence.
Petitioner then filed a post-conviction appeal in the state trial court. The
state trial court denied relief on October 24, 1997, and petitioner filed a post-
conviction appeal in the Oklahoma Court of Criminal Appeals. The court of
criminal appeals denied petitioner’s request for relief on December 12, 1997.
Petitioner thereafter filed an amended petition for writ of habeas corpus on
February 6, 1998 in the United States District Court for the Eastern District of
Oklahoma. Adopting the findings and recommendation of a magistrate judge, the
district court denied petitioner’s amended request for federal habeas corpus relief.
The district court also denied petitioner’s request for a certificate of appealability.
Petitioner timely filed a notice of appeal in this court.
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Mr. Williams appears to argue that the Oklahoma Court of Criminal
Appeals acted arbitrarily when it reversed the decision of the emergency panel
granting him a new trial, thereby depriving him of his liberty without due process
or equal protection of the law. He further asserts that as a result of the court’s
violation of his constitutional rights, Oklahoma lost both personal and subject
matter jurisdiction over him. Consequently, petitioner contends that any judgment
or order entered by an Oklahoma court against him, including his conviction and
sentence in the state trial court, is void. We disagree.
As the magistrate judge pointed out in his findings and recommendation,
the Oklahoma Court of Criminal Appeals has the power to assign certain cases to
an emergency panel and to review the decision of an emergency panel upon the
filing of a petition for review. Okla Stat. Ann. tit. 20, § 60.1-60.5 (West Supp.
1999); Jackson v. Freeman , 905 P.2d 217, 222 (Okla. 1995). Thus, the Oklahoma
Court of Criminal appeals had the power to reverse the emergency panel. In
addition, the record reveals that the Oklahoma Court of Criminal Appeals
reversed the emergency panel because it found that the record did not support the
panel’s conclusion. Therefore, the court’s decision to affirm Mr. Williams’s
conviction and sentence was not arbitrary, and there is no basis for habeas relief
on this ground.
We conclude that Mr. Williams has failed to make a “substantial showing
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of the denial of a constitutional right,” as required under 28 U.S.C. § 2253(c).
Accordingly, we deny his application for a certificate of appealability.
This appeal is DISMISSED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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Williams v. Kaiser
Combined Opinion