Traywick v. Jordan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 13, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

JA M ES TR AY WIC K,

Petitioner - A ppellant,

v. No. 06-7063
(E. D. Okla.)
LENORA JORDAN, W arden, (D.Ct. No. CIV-03-172-JHP)

Respondent - Appellee.
____________________________

OR DER DENY ING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N

Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

James Traywick (Traywick), a state prisoner proceeding pro se, 1 filed a

28 U.S.C. § 2254 petition for habeas corpus. Based on the m agistrate’s Report

and Recommendation, the district court dismissed the petition. Traywick then

filed a request for a certificate of appealability (COA), which the court denied. In

1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
this Court, Traywick renews his requests for COA. See 28 U.S.C.

§ 2253(c)(1)(A ); F ED . R. A PP . P. 22(b)(1), 24(a)(5).

Background

On August 10, 2001, Traywick was convicted by a jury of Endeavoring to

M anufacture Controlled Dangerous Substance (M ethamphetamine), After Former

Convictions of Tw o or M ore Felonies in violation of Oklahoma Statutes Title 63,

§§ 2-401, 2-408. He was sentenced to forty years imprisonment. His conviction

was affirmed on direct appeal by the Oklahoma Court of Criminal Appeals

(O CCA). Traywick v. State, No. F-2001-989 (Okla. Crim. App. Sept. 24, 2002)

(unpublished). Traywick’s A pplication for Post-Conviction Relief in state court

was denied in December 2002. Traywick v. State, No. CF-2000-78 (Okmulgee

County Dist. Ct. Dec. 16, 2002) (unpublished). The OCCA affirmed. Traywick v.

State, No. PC-2003-25 (Okla. Crim. App. Feb. 25, 2003) (unpublished).

Traywick then filed a § 2254 petition in the United States District Court for

the Eastern District of Oklahoma, challenging his conviction on fourteen grounds:

1) the jury instructions were fatally defective, because they failed to inform the

jury of the elements of the crime, 2) the evidence is insufficient to support the

jury’s finding that Traywick endeavored to manufacture methamphetamine, 3) the

trial court failed to instruct the jury that a case relying exclusively on

circumstantial evidence must include reasonable theories of innocence, 4) the trial

court erred in failing to instruct the jury that prior inconsistent statements cannot

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be used as substantive evidence of guilt, 5) the trial court erred in failing to

follow statutory procedures when the jury had a question, 6) photographs

admitted of Traywick w ere more prejudicial than probative, 7) the trial court

erred in allowing the trial to be bifurcated for purposes of penalty enhancement,

8) Traywick’s sentence should be modified because extraneous, prejudicial

information from the fact of previous convictions was introduced into evidence,

9) the trial court’s errors cumulatively deprived Traywick of a fair trial and

reliable verdict, 10) petitioner’s sentence was excessive, considering the totality

of the circumstances of this case, 11) the State failed to prove that the petitioner

was guilty beyond a reasonable doubt, 12) prosecutorial misconduct deprived the

petitioner of a fair trial and due process of law , 13) the petitioner was subjected to

an illegal arrest, thus the charges should have been dismissed, and 14) petitioner

was denied his right to the effective assistance of counsel.

On M arch 16, 2006, the magistrate judge entered a Report and

Recommendation with regards to disposition of Traywick’s petition. The

magistrate’s seventeen page report thoroughly and exhaustively reviewed each of

Traywick’s claims and its resolution by the state court. It recommended

Traywick’s petition, in all respects, be dismissed. The district court reviewed

Traywick’s objections to the magistrate’s recommendation and determined he did

not raise any issue of law or fact which would alter the viability of the

recommendation. Since Traywick simply reurged the same contentions made to

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the magistrate judge and other courts, the district court determined his objections

were without merit.

The district court adopted the magistrate judge’s Report and

Recommendation as its own, denied Traywick’s Petition for W rit of Habeas

Corpus and dismissed the action. Thereafter, it denied Traywick’s request for a

COA. It did, however, grant Traywick’s M otion for Leave to Proceed in forma

pauperis on appeal. On June 15, 2006, Traywick filed a pro se notice of appeal

with this Court which included an application for a COA. F ED . R. A PP . P.

22(b)(1).

Certificate of Appealability

A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Traywick

makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] 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)

(quotations omitted). In his attack on the substance of his trial, Traywick has

made no argument showing the denial of a constitutional right. In essence, he is

treating his application like a direct appeal and not habeas corpus. W e find no

issue in the magistrate’s thorough Report and Recommendation or the district

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court’s order of dismissal reasonably debatable. Slack, 529 U.S. at 484.

Traywick has failed to make a sufficient showing that he is entitled to a COA.

Accordingly, we D EN Y COA and DISM ISS the m atter.

Entered by the C ourt:

Terrence L. O ’Brien
United States Circuit Judge

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