F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 30 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIE LEE EMMITT, JR.,
Petitioner - Appellant,
v. No. 01-6345
(D.C. No. 00-CV-716-L)
TWYLA SNIDER, Warden; (W.D. Oklahoma)
ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and O’BRIEN , 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This order and judgment is not binding precedent, except under the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.
Willie Lee Emmitt, Jr., a state prisoner, requests a certificate of
appealability, required by 28 U.S.C. § 2253(c)(2) for further consideration of his
case. He wishes to appeal from the dismissal of a habeas corpus petition he
brought in the federal district court under 28 U.S.C. § 2254(d). His petition
simply restates arguments considered and rejected by the Oklahoma Court of
Criminal Appeals, the federal magistrate judge, and the federal district judge.
Like all who have previously considered his arguments, we find them without
merit.
Mr. Emmitt was convicted of four drug-related offenses, after the former
conviction of two or more felonies involving controlled dangerous substances.
He was sentenced to forty years’ imprisonment, and his conviction and sentence
were affirmed on direct appeal.
Mr. Emmitt subsequently sought federal habeas relief on the same nine
grounds argued in his state appeal: (1) a due process violation based on the
prosecution’s presentation of a co-defendant’s perjured testimony; (2) the effect
the trial judge’s private conversation with a former attorney for Mr. Emmitt and
eventual exclusion of the co-defendant’s written statement on his rights to
confrontation, cross-examination, counsel, and an unbiased judge; (3) the trial
court’s failure to give proffered jury instructions; (4) the trial court’s allusion to
Mr. Emmitt’s decision to exercise his right not to testify; (5) the alleged bias of
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the trial judge; (6) a double jeopardy violation, by allowing conviction of
possession of methamphetamine with intent to distribute and also conviction of
maintaining a dwelling house where controlled dangerous substances are kept;
(7) prosecutorial misconduct; (8) cumulative error based on state law violations;
and (9) ineffective assistance of trial counsel.
A federal court may not grant a writ of habeas corpus on any claim that was
adjudicated on the merits by a state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d); see also Williams v. Taylor , 529 U.S. 362, 412-13 (2000).
In Mr. Emmitt’s case, the magistrate judge carefully analyzed each of
the claims under the appropriate standard and recommended that all claims be
denied on the merits. After consideration of Mr. Emmitt’s objections, the district
court adopted the recommendation and denied the petition. Later, it denied
Mr. Emmitt’s request for certificate of appealability (COA).
To be entitled to a certificate of appealability, Mr. Emmitt must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). He must demonstrate that “reasonable jurists could debate whether
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(or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000)
(quotations omitted).
We have carefully reviewed Mr. Emmitt’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or petitioner’s argument raises an issue which meets our standards for the grant
of a certificate of appealability. For substantially the same reasons as set forth in
the magistrate judge’s thoughtful and thorough report and recommendation, dated
January 4, 2001, and the district court’s order dated August 9, 2001, we DENY
petitioner’s request for a certificate of appealability and DISMISS the appeal.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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