F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 9 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
JESSIE RAY LAWS,
Petitioner - Appellant,
v.
No. 02-6000
(D.C. No. 00-CV-1775-R)
BRENT FATKIN; ATTORNEY
(W. District of Oklahoma)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and HARTZ, Circuit Judges.
Pro se petitioner Jessie Ray Laws, an Oklahoma state prisoner, seeks a
certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge
the district court’s dismissal of his petition for a writ of habeas corpus as
procedurally barred. We deny the application for a COA and dismiss.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
Laws is imprisoned pursuant to various state drug convictions. These
convictions were affirmed on direct appeal by the Oklahoma Court of Criminal
Appeals (“OCCA”). Laws filed an application for post-conviction collateral
relief, which the state district court denied on June 13, 2000. The OCCA
determined that his appeal from that denial, which was filed July 17, 2000, was
untimely under Rule 5.2(C)(2) of the Rules of the Court of Criminal Appeals,
which states:
A petition in error and supporting brief, WITH A CERTIFIED COPY
OF THE ORDER ATTACHED must be filed with the Clerk of this
Court. If the post conviction appeal arises from a misdemeanor or
regular felony conviction, the required documents must be filed
within thirty (30) days from the date the final order of the District
Court is filed with the Clerk of the District Court.
Okla. Stat. Ann. tit. 22, ch. 18, App. R. 5.2(C)(2). The OCCA therefore declined
jurisdiction over the appeal.
In his federal application for a writ of habeas corpus, Laws contends that he
received ineffective assistance of trial and appellate counsel in contravention of
the Sixth Amendment. 1 The district court held that these claims, which were
raised in Laws’s post-conviction application, were procedurally defaulted. As we
1
Laws also alleged before the district court that he was denied due process
and equal protection during his state post-conviction proceedings and that he was
unlawfully convicted without having had a preliminary hearing. Although the
district court denied Laws’s habeas application in toto, in his application for a
COA Laws challenges only the dismissal of his ineffective-assistance-of-counsel
claims.
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have stated, federal courts on habeas review “do[] not address issues that have
been defaulted in state court on an independent and adequate state procedural
ground, unless the petitioner can demonstrate cause and prejudice or a
fundamental miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 749–50 (1991)).
In Johnson v. Champion , 288 F.3d 1215, 1227 n.3 (10th Cir. 2002), we held
that the OCCA’s declination of jurisdiction based on Rule 5.2(C)(2) constitutes an
independent and adequate state procedural ground. For substantially the same
reasons articulated by the district court, we conclude that Law fails to
demonstrate either cause and prejudice or a fundamental miscarriage of justice to
overcome his procedural default.
Accordingly, upon our examination of the record, we DENY the application
for a COA and DISMISS this matter. We GRANT Laws’s motion to proceed in
forma pauperis. 2
2
On July 15, 2002, Laws filed a “Verified Application for Leave to Amend
Opening Brief.” We deny this application. The proposed amendments to Laws’s
opening brief would not warrant a different disposition of this matter. Most
importantly, his claim under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(holding that any fact other than a prior conviction which increases the prescribed
statutory maximum penalty must be submitted to a jury and proved beyond a
reasonable doubt), would fail even if we considered it at this juncture because,
contrary to Laws’s characterization, Apprendi does not require the prosecution to
come forward with “conclusive evidence . . . that [he] is guilty of any offense
. . . .” (Applic. Leave Amend Opening Br. at 8 (emphasis added).)
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The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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