F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ARLAND BIRL MILLWOOD,
Petitioner-Appellant,
v. No. 99-6284
(D.C. No. CIV-97-911-C)
RON CHAMPION, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , 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.
Petitioner Arland B. Millwood appeals the district court’s dismissal of his
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2245.
*
This order and judgment is not binding precedent, except under the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.
Because petitioner has not made a substantial showing of the denial of a
constitutional right, we deny his request for a certificate of appealability and
dismiss the appeal.
Petitioner is currently serving Oklahoma state sentences for rape after
former conviction of a felony, and forcible sodomy after former conviction of a
felony. His convictions were affirmed on direct appeal in July 1986. On July 6,
1995, petitioner filed an application for state post-conviction relief in the
Oklahoma state court, claiming that his appellate counsel was ineffective and that
the state trial court should have sua sponte ordered DNA fingerprint testing. On
November 28, 1995, the state district court denied relief. On January 4, 1996, the
Oklahoma Court of Criminal Appeals dismissed petitioner’s appeal for failure to
attach a certified copy of the district court’s denial, as required by the local rules.
On January 12, 1996, petitioner filed a petition for a writ of habeas corpus
in the federal district court, alleging the state appellate court’s dismissal of his
post-conviction appeal denied him due process. The federal district court
dismissed the petition for failure to exhaust state remedies. Petitioner did not
appeal this dismissal.
On May 20, 1996, petitioner filed a “motion for reissuance of order,” which
the state court construed as a motion to appeal out of time and denied. The
Oklahoma Court of Criminal Appeals affirmed the denial because petitioner again
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failed to attach certified copies of the state district court’s orders, and thus there
was nothing to review.
On June 4, 1997, petitioner filed this habeas petition with the federal
district court. The matter was referred to a magistrate judge who recommended
dismissing the petition based on petitioner’s procedural default in the state court.
The district court adopted the recommendation and dismissed the petition with
prejudice. This appeal followed. 1
To obtain appellate review, petitioner must secure a certificate of
appealability by making a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c). Petitioner argues on appeal that (1) the district court
erred in finding his claims procedurally defaulted because his petition was timely
filed; (2) he showed cause for his procedural default because he satisfied the
procedural requirements of timeliness and place of filing and because the state did
not provide him with a certified copy of the order denying post-conviction relief;
and (3) he has shown actual innocence.
1
On August 10, 1999, we issued a show cause order, questioning our
jurisdiction in this case. Upon examining the responses by petitioner and
respondent, we are satisfied that petitioner’s notice of appeal was delivered to
prison officials within the time to appeal, and thus we have jurisdiction over this
appeal. See Fed. R. App. P. 4(c) (providing a pro se prisoner’s notice of appeal is
deemed filed when it is delivered to prison officials).
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After reviewing petitioner’s brief and the record, we conclude he has not
met the requirements for issuance of a certificate of appealability. Petitioner’s
procedural default stemmed from his failure to attach a certified copy of the state
district court’s post-conviction denial to his appeal. It is irrelevant that his state
appeal and federal petition were timely and were filed in the proper places.
Although the state court’s alleged failure to supply petitioner with a certified copy
of its decision is relevant to the issue of cause for his procedural default,
petitioner did not submit evidence to establish this fact. He also did not supply
any evidence showing that he is actually innocent of the crimes for which he was
convicted.
Accordingly, petitioner’s motion for a certificate of appealability is denied
and the appeal is dismissed.
Entered for the Court
Michael R. Murphy
Circuit Judge
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