F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 2 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
KURK KENDALL JOHNSON,
Petitioner - Appellant,
vs. No. 00-5217
(D.C. No. 97-CV-777-BU)
RON WARD, (N.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Mr. Johnson, a prisoner appearing pro se, appeals from the district court’s
denial of his application for a certificate of appealability (“COA”) and petition for
habeas corpus relief. More than two decades ago, Mr. Johnson was convicted in
two separate trials in Oklahoma of kidnapping for the purpose of extortion and
second degree murder. He appealed his conviction for second degree murder,
*
This order and judgment is not binding precedent, except under the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.
**
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); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
sought state post-conviction relief on four separate occasions, and then petitioned
for federal habeas relief. R. doc. 28, at 3-4. The district court denied Mr.
Johnson’s petition and his application for a COA. R. doc. 28, at 17; R. doc. 36, at
2. On appeal, Mr. Johnson has identified four issues which he believes satisfies
the required showing for a COA: (1) double jeopardy, (2) conviction under a
repealed statute, (3) defective second degree murder information, and (4)
ineffective assistance of trial and appellate counsel. Pet. Br. at 4. Mr. Johnson
identified these same issues in his habeas petition to the district court. R. doc. 3,
at 1. We have jurisdiction under 28 U.S.C. § 2253(c)(1)(A), and deny Mr.
Johnson a COA and dismiss his petition.
We have considered Mr. Johnson’s petition and COA application, and have
reviewed the district court’s order and accompanying pleadings in the record,
including Mr. Johnson’s August 25, 1997 habeas petition. Having done so, we
conclude that a COA should not issue because Mr. Johnson has not “made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). With the exceptions noted infra, we are substantially in agreement
with the district court’s thorough analysis of Mr. Johnson’s petition, including the
conclusion that the subsequent murder prosecution of Mr. Johnson did not violate
the Double Jeopardy Clause. See Brown v. Ohio, 432 U.S. 161, 166 & n.6
(1976); Blockburger v. United States, 284 U.S. 299 (1932).
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The district court failed to address two of Mr. Johnson’s arguments
regarding the validity of the second degree murder statute under which he was
convicted, Okla. Stat. tit. 21 § 701.4 (1973): (1) that § 701.4 was unconstitutional,
and (2) that § 701.4 conflicted with Okla. Stat. tit. 22 § 926 (1971). R. doc. 2, at
12-14. This oversight, however, does not entitle Mr. Johnson to a COA. Even
had the district court addressed these arguments, the result would not have been
different. Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000). § 701.4 was
constitutional, Riggs v. Branch, 554 P.2d 823, 829-30 (Okla. Ct. Crim. App.
1976), overruled on other grounds, Selsor v. Turnbull, 947 P.2d 579 (Okla. Ct.
Crim. App. 1997), and whether Okla. Stat. tit. 21 § 701.4 was consistent with
Okla. Stat. tit. 22 § 926 is a question of state law, not cognizable in a federal
habeas petition. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Contrary to Mr.
Johnson’s contention, he did not have a liberty interest in a jury determination of
his sentence as the defendant did in Hicks v. Oklahoma, 447 U.S. 343, 346
(1980). Okla. Stat. tit. 21 § 701.4 did not give the jury discretion to determine
Mr. Johnson’s sentence. Cf. id.
Mr. Johnson’s application for a COA is DENIED, and his habeas petition is
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DISMISSED. Mr. Johnson’s motion for appointment of counsel is also DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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