F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JO H N W ESLEY BO LTO N ,
Petitioner - A ppellant, No. 06-6132
v. W . Dist. Okla.
ERIC FRAN KLIN; THE A TTORNEY (D.C. No. CIV-05-1205-HE)
G EN ER AL O F TH E STA TE O F
O K LA H OMA ,
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
John W esley Bolton was convicted in Oklahoma state court of trafficking in
illegal drugs. His conviction was affirmed by the Oklahoma Court of Criminal
Appeals (O CCA). M r. Bolton filed an application for postconviction relief in
state court, and the OCCA denied relief. On October 14, 2005, M r. Bolton filed a
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
habeas application under 28 U.S.C. § 2254 in the United States District Court for
the W estern District of Oklahoma. The magistrate judge recommended denying
his application, and on M arch 28, 2006, the district court did so. M r. Bolton filed
a notice of appeal on M arch 31, and now requests a certificate of appealability
(C OA) from this court, see 28 U.S.C. § 2253(c)(1) (requiring COA). W e deny a
COA.
M r. Bolton challenges the district court’s ruling on two grounds. First, he
contends that his constitutional rights to due process and equal protection were
violated when the state trial court enhanced his sentence based on a prior felony
manslaughter conviction, felony robbery conviction, and misdemeanor marijuana
conviction. Second, he contends that his trial counsel was ineffective for failing
to challenge the use of the prior convictions to enhance his sentence.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (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. M cDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.
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I. IM PR OPE R E NHA N C EM ENT
The magistrate judge recommended rejecting M r. Bolton’s improper-
enhancement claim on the ground that a misapplication of state law cannot
support federal habeas relief. W e agree. “W e will not second guess a state
court’s application or interpretation of state law on a petition for habeas unless
such application or interpretation violates federal law.” Bowser v. Boggs, 20 F.3d
1060, 1065 (10th Cir. 1994). And to the extent that M r. Bolton is arguing based
on Apprendi v. New Jersey, 530 U .S. 466 (2000), that his federal due-process
rights were violated by the allegedly improper enhancement based on his prior
convictions, the argument is without merit. See United States v. Booker, 543 U.S.
220, 231 (2005) (“W e held [in Apprendi]: ‘Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’” (emphasis added)).
Additionally, insofar as M r. Bolton is asserting an equal-protection claim,
he has offered no factual or legal support, nor even a coherent argument on the
point. No reasonable jurist could dispute the district court’s denial of this claim.
II. INEFFECTIVE NESS
The magistrate judge recommended rejecting M r. Bolton’s ineffectiveness
claim on the ground that in state postconviction proceedings M r. Bolton “had
asserted the same theory [related to enhancement of his sentence with the prior
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convictions] and the OCCA rejected the claim on the merits.” (Rep. and
Recommendation at 6, Feb. 28, 2006.) The OCCA had indeed rejected an
appellate-counsel-ineffectiveness claim related to the sentence enhancement
because the improper-enhancement claim itself was meritless:
W e note that Petitioner’s sentence, as assessed in this case, was
within the proper range for the offense charged. W e also find no
merit in Petitioner’s claim that his conviction was improperly
enhanced by his misdemeanor drug conviction. The record presented
to this Court does not support such a conclusion. W ith regard to
Petitioner’s claim of ineffective assistance of appellate counsel, we
agree with the District Court’s conclusion that the underlying claim
upon which Petitioner bases his claim of ineffective assistance of
appellate counsel is without merit, therefore counsel was not
ineffective for failing to raise the issue.
R. Doc. 15 Ex. 4 at 3-4. The OCCA also stated that “Petitioner had two (2) prior
felony convictions that were properly considered by the District Court in
imposing Petitioner’s sentence.” R. Doc. 15 Ex. 4 at 3. Again, we will not
second guess a state court’s interpretation of its own law on habeas review. See
Bowser, 20 F.3d at 1065. Given the OCCA’s ruling rejecting on the merits
M r. Bolton’s claim that his conviction was improperly enhanced, he was not
prejudiced by his state-court attorney’s failure to raise the claim. Accordingly,
his ineffectiveness claim must fail. See United States v. Cook, 45 F.3d 388, 393
(10th Cir. 1995) (counsel is not ineffective for failing to raise meritless claims).
No reasonable jurist would decide otherw ise.
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W e DENY a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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