Bell v. Kaiser

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

JOE T. BELL,

Petitioner-Appellant,

v. No. 00-6330
(D.C. No. 99-CV-1146-R)
STEPHEN W. KAISER; (W.D. Okla.)
DREW EDMONDSON; STATE
OF OKLAHOMA,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , 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This order and judgment is not binding precedent, except under the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 seeks a certificate of appealability (COA) to proceed with his

appeal from the district court’s denial of his petition for writ of habeas corpus.

In order to obtain a COA, petitioner must make a substantial showing of the

denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To do so, he must

demonstrate that “reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Slack v. McDaniel , 120 S. Ct.

1595, 1604 (2000).

Petitioner raised fourteen issues in his federal habeas petition: (1) error

by the trial court in refusing to instruct the jury on voluntary intoxication;

(2) ineffective assistance of trial counsel for failing to object to certain jury

instructions; (3) failure of the state to prove beyond a reasonable doubt that

petitioner did not act in self defense because there were no eye witnesses to the

altercation; (4) failure to prove that the candy dish was the weapon used (because

there were no fingerprints, DNA blood evidence or forensic reports); (5) failure

by the state to disclose that there were no fingerprints, DNA blood evidence,

forensic reports or expert medical examiner’s reports; (6) insufficient evidence to

support the conviction (lack of fingerprints and victim’s blood on the dangerous

weapon); (7) ineffective assistance of trial counsel for failing to object to the

state’s evidence and failing to seek a dismissal on the ground that the state failed

to prove the candy dish was the weapon used; (8) ineffective assistance of trial

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counsel for failing to impeach the victim with her prior conviction; (9) ineffective

assistance of trial counsel for failing to contact character witnesses;

(10) ineffective assistance of appellate counsel for failing to raise trial counsel’s

ineffectiveness; (11) violation of petitioner’s Fourteenth Amendment rights

because he was not permitted to take part in the jury selection process;

(12) coercion of the jury by the trial judge and the state; (13) vindictive

prosecution in retaliation for petitioner’s lawsuits against the Oklahoma county

sheriff; and (14) ineffective assistance of trial counsel for failing to seek a change

of venue.

The magistrate judge carefully considered each claim. After reviewing the

magistrate judge’s report and recommendation de novo and considering

petitioner’s objections, the district court adopted the report and recommendation

and denied the petition. We agree with the thorough and well reasoned

consideration of petitioner’s claims by both the magistrate judge and district

judge, making duplication of that analysis unnecessary. Because we have

determined that reasonable jurists would find the district court’s assessment of

petitioner’s constitutional claims neither debatable nor wrong, we conclude

that petitioner has failed to make a substantial showing of the denial of

a constitutional right for substantially the reasons set forth in the magistrate

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judge’s recommendation of August 21, 2000, and the district court’s order of

September 21, 2000.

The application for a certificate of appealability is DENIED and the appeal

is DISMISSED. The motion for leave to proceed on appeal in forma pauperis is

GRANTED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel
Circuit Judge

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