F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
MAJOR HUDSON, III,
Petitioner - Appellant,
v. No. 01-6296
(D.C. No. 01-CV-258-W)
JAMES L. SAFFLE, Director of the (W.D. Okla.)
Oklahoma Department of Corrections,
Respondent - Appellee,
and
STATE OF OKLAHOMA,
Respondent.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Petitioner-Appellant Major Hudson, III, an inmate appearing pro se, seeks a
*
This order and judgment is not binding precedent, except under the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.
certificate of appealability (“COA”) allowing him to appeal the district court’s
order denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Because
Petitioner has failed to make a “substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request
and dismiss the appeal.
Petitioner was convicted in a jury trial of Rape in the First Degree,
Burglary in the First Degree, Child Abuse, and Threatening a Witness. He was
sentenced to fifty-three years on the rape charge, twenty years on the burglary
charge, ten years on the child abuse charge, and seven years on the witness
threatening charge, all to be served consecutively. On direct appeal, the
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions and
sentences. Petitioner subsequently filed an application for post-conviction relief
in state court, alleging that his court-appointed appellate counsel provided
ineffective assistance. The state trial court denied the application and the OCCA
subsequently entered an order declining jurisdiction dismissing Petitioner’s post-
conviction appeal on the ground that it was untimely filed.
Petitioner then filed a federal habeas petition, claiming (1) admission of
evidence of other crimes denied him a fair trial; (2) the evidence was insufficient
to support the convictions; (3) defense counsel provided ineffective assistance of
counsel at trial; (4) the sentences were excessive; and (5) his appellate counsel
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provided ineffective assistance on his direct appeal. After referral of the matter
from the district court, the magistrate judge issued a thorough Report and
Recommendation, recommending dismissal of the petition. R. Doc. 17.
Petitioner had filed a motion to stay the proceeding in federal court because he
claimed he had a pending application in state trial court to appeal out of time the
denial of his post-conviction ineffective assistance of appellate counsel claim.
The magistrate judge denied the motion after concluding that Petitioner had
provided no specific information or documentary evidence supporting his
allegation of a post-conviction proceeding. The district court adopted the Report
and Recommendation and denied both the petition and the motion to stay the
proceedings. R. Doc. 20.
With the exception of his claim of ineffective assistance of appellate
counsel, Petitioner raises the same issues in this appeal as he did below: (1) that
admission of other crimes denied him a fair trial; (2) that the evidence was
insufficient to support the convictions; (3) that defense counsel provided
ineffective assistance; and (4) that his sentence was excessive.
We have carefully reviewed Petitioner’s request for a COA, his appellate
brief, the magistrate judge’s recommendation, and the appellate record, and
conclude that he has failed to demonstrate that the issues raised are debatable
among jurists, that a court could resolve the issues differently, or that the
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questions presented deserve further proceedings. See Slack v. McDaniel, 529
U.S. 473, 483–84 (2000). As such, Petitioner has failed to make the “substantial
showing of the denial of a constitutional right” required for a COA. 28 U.S.C. §
2253(c)(2).
Accordingly, for substantially the reasons set forth by the magistrate judge,
we DENY Petitioner’s request for a COA and DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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