F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 2 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
GREGORY ALLEN CARPENTER,
Petitioner-Appellant,
No. 00-6459
v.
(W. District of Oklahoma)
(D.C. No. 99-CV-1941-T)
JAMES L. SAFFLE, Director of the
Department of Corrections,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, 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This order and judgment is not binding precedent, except under the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.
This case is before the court on Gregory Allen Carpenter’s application for a
certificate of appealability (“COA”). Carpenter seeks a COA so that he can
appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the
denial of a § 2254 petition unless the petitioner first obtains a COA). Because
Carpenter has not “made a substantial showing of the denial of a constitutional
right,” this court denies his request for a COA and dismisses the appeal. Id. §
2253(c)(2).
In his habeas petition, Carpenter challenged his convictions, entered upon
his pleas of nolo contendere, on charges of unlawful possession of a controlled
dangerous substance and delivery of a controlled dangerous substance. Carpenter
entered into a plea agreement pursuant to the Oklahoma Drug Court Act, see
Okla. Stat. tit. 22, §§ 471-471.11, wherein he agreed that the charges against him
would be dropped if he successfully completed a drug treatment program. If he
failed to successfully complete the program, however, the plea agreement
provided that Carpenter would be sentenced to a term of imprisonment of twenty-
five years on each charge, with the sentences to run concurrently. When
Carpenter failed to complete the drug treatment program, he was sentenced to
prison pursuant to the terms of the plea agreement. Carpenter asserted before the
district court, and reasserts on appeal, that his convictions are void because at the
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time he entered the plea agreement he had prior felony convictions and was not,
therefore, eligible for the drug court program.
Carpenter’s petition was referred to a magistrate judge for initial
proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge
recommended that Carpenter’s petition be denied on the ground that his claim was
procedurally barred. In particular, the magistrate judge noted that under
Oklahoma law, an appeal of a conviction based upon a plea of guilty must
commence with the filing of the motion to withdraw a guilty plea, the denial of
which may be appealed by writ of certiorari to the Oklahoma Court of Criminal
Appeals. See Okla. Stat. tit. 22, § 1051; Rule 4.2, Rules of the Court of Criminal
Appeals, Okla. Stat. tit. 22, Ch. 18, App. Carpenter’s failure to comply with these
procedural requirements constituted a waiver of the right to appeal his
convictions. See Okla. Stat. tit. 22, § 1086.
Recognizing the applicability of the procedural bar, Carpenter asserted that
the procedural bar was not regularly applied in Oklahoma when a sentence is void
as a matter of law. See, e.g., Stewart v. State, 989 P.2d 940, 943 (Okla. Crim.
App. 1999). Carpenter further asserted that his sentences were void because his
previous felony convictions rendered him ineligible for the drug court program.
In support of this position, Carpenter cited to Stewart v. State, 989 P.2d 940
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(Okla. Crim. App. 1999) and Bumpus v. State, 925 P.2d 1208 (Okla. Crim. App.
1996).
The magistrate judge rejected Carpenter’s assertion that his sentences were
void, noting that the Oklahoma Drug Court Act was not at issue in either Stewart
or Bumpus and that the Act, unlike the diversionary sentencing program at issue
in those cases, did not contain a provision making individuals with prior felonies
ineligible to participate. In fact, the Drug Court Act specifically contemplates
that participants in the program might have prior felony convictions. See Okla.
Stat. tit. 22, § 471.9 (providing that when a offender has completed the drug court
program, the case against the offender shall be “dismissed if the offense was a
first felony offense” or “shall be as specified in the written plea agreement” if the
offender “has a prior felony conviction”). Accordingly, the magistrate judge
concluded that Oklahoma’s procedural bar was adequate and applicable in this
case and that Carpenter could obtain review of his claim only upon showing cause
and prejudice for the procedural default or that the failure to consider the claim
on the merits would result in a fundamental miscarriage of justice. See Coleman
v. Thompson, 501 U.S. 722, 750 (1991).
Because Carpenter did not assert that he was actually innocent of the
crimes for which he was convicted, the magistrate judge concluded that Carpenter
could not demonstrate a fundamental miscarriage of justice. See Klein v. Neal, 45
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F.3d 1395, 1400 (10th Cir. 1995). Furthermore, although Carpenter asserted that
his trial counsel was ineffective in failing to seek a writ of certiorari after the
district court denied his motion to withdraw his guilty plea, the magistrate judge
noted that the ineffective assistance claim could not serve as cause because it had
not been raised in state court. See Murray v. Carrier, 477 U.S. 478, 489 (1986);
Edwards v. Carpenter, 120 S. Ct. 1587, 1591-92 (2000). Accordingly, the
magistrate judge recommended that Carpenter’s § 2254 petition be denied on the
ground that the only claim presented was procedurally barred. Upon de novo
review, the district court accepted the magistrate judge’s report and
recommendation and denied the petition.
To be entitled to a COA, Carpenter must make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make such a
showing by demonstrating that the issue he seeks to raise is debatable among
jurists, a court could resolve the issue differently, or that the question presented
deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). Upon de novo review of Carpenter’s appellate filings, the magistrate
judge’s report and recommendation, the district court order, and the entire
appellate record, this court concludes that Carpenter has not made a substantial
showing of the denial of a constitutional right for substantially those reasons set
out in the magistrate judge’s thorough and well-reasoned report and
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recommendation dated October 4, 2000. Accordingly, this court GRANTS
Carpenter’s request to proceed in forma pauperis on appeal, DENIES his request
for a COA, and DISMISSES the appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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