FILED
United States Court of Appeals
Tenth Circuit
May 27, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
STANLEY MAURICE ROBINSON,
Petitioner - Appellant,
No. 08-5005
v. N.D. Okla.
RON WARD, Director; OKLAHOMA (D.C. No. 03-CV-00183-TCK-PCJ)
DEPARTMENT OF CORRECTIONS;
STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Stanley Robinson, a state prisoner appearing pro se 1 and in forma pauperis,
seeks a Certificate of Appealability (COA) with respect to the dismissal of his
petition for habeas corpus. The district court denied a COA. We likewise deny a
COA and dismiss this nascent appeal.
Robinson was tried, convicted and sentenced to forty years imprisonment
for unauthorized use of a motor vehicle after a former conviction of two or more
felonies. Following direct appeal of his conviction and denial of post-conviction
1
We liberally review pro se pleadings. See Beedle v. Wilson, 422 F.3d
1059, 1063 (10th Cir. 2005).
relief in state courts, Robinson filed a federal petition for writ of habeas corpus.
He claimed the Oklahoma Court of Criminal Appeals (OCCA) denied his right to
effective assistance of trial and appellate counsel. He maintains his counsel was
ineffective for failing to challenge the prosecutor’s misconduct and the jury’s
consideration of two improper sentences at the penalty phase.
The district court concluded the OCCA’s rejection of Robinson’s
prosecutorial misconduct claim was not an unreasonable application of
constitutional law. First, as a matter of fact, the OCCA determined the trial court
redacted any information that would imply Robinson was on parole or probation
at the time he committed his current offense. Second, as a matter of law, the
OCCA determined the prosecutor’s improper comments were the target of defense
counsel’s objections and the trial court gave the jury specific instructions curing
any error. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (rebuttable
presumption that a jury will follow judge’s instruction to disregard evidence).
The district court determined the OCCA used the wrong standard in
reviewing Robinson’s ineffective assistance of appellate counsel claim, so it
conducted a de novo review applying Strickland v. Washington, 466 U.S. 668
(1984). The district court concluded counsel was not ineffective by failing to
challenge Robinson’s previous convictions because the claim is without merit.
See Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998). The district court
concluded that even if one of Robinson’s previous convictions resulted in an
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invalid sentence, an invalid sentence did not invalidate the conviction itself. See
United States v. Jackson, 493 F.3d 1179, 1184 (10th Cir. 2007); Davis v. State,
845 P.2d 194, 197 (Okla. Crim. App. 1993) (illegal sentence does not affect the
validity of a judgment). In any event, it determined the convictions were
appropriately used for the sentence enhancement. Finally, to the extent Robinson
failed to raise the alleged trial errors on direct appeal, his claims were
procedurally barred. Robinson seeks a COA to appeal from the district court’s
determinations.
A COA is a jurisdictional pre-requisite to our review. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Clark makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this showing, Robinson 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. McDaniel, 529 U.S. 473, 484
(2000) (quotations omitted). Where the district court dismissed his habeas petition on
procedural grounds, he must demonstrate both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a
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reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.” Id. We review the district court’s factual findings for clear error and its
legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001).
In his request for a COA, Robinson frames the issues as follows: (1)
whether the district court erred in concluding Robinson was afforded a full and
fair opportunity to litigate his Sixth Amendment claim; and (2) whether trial and
appellate counsel were ineffective. The district court carefully reviewed
Robinson’s Sixth Amendment claims and correctly determined his trial counsel
and his appellate counsel were not ineffective. His remaining claims are
procedurally barred. We DENY a COA and DISMISS his application.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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