FILED
United States Court of Appeals
Tenth Circuit
August 29, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEFFREY DEAN KING,
Petitioner - Appellant,
v. No. 14-6105
(D.C. No. 5:14-CV-00057-M)
CHAD MILLER, Warden, (W.D. Oklahoma)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Petitioner and Appellant, Jeffrey Dean King, a state prisoner proceeding
pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the
district court’s dismissal of his 28 U.S.C. § 2254 petition without prejudice for
lack of jurisdiction. Concluding that Mr. King has failed to demonstrate
entitlement to the grant of a COA, we deny his request for a COA and dismiss
this matter.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. King is currently serving a 400-year sentence following his conviction
for second degree murder after earlier convictions for two or more felonies. One
of those earlier convictions was for second degree burglary, to which he pled
guilty in June 1984. He served a two-year sentence of imprisonment for that
conviction. Mr. King did not appeal his burglary conviction.
Mr. King did, however, on September 17, 2012, file an application for post-
conviction relief from that 1984 burglary conviction. He claimed he was entitled
to post-conviction relief and an appeal out of time because his guilty plea violated
double jeopardy guarantees. The exact basis for the double jeopardy claim is
unclear, although Mr. King did allege that there was a juvenile court proceeding
in which he was “adjudicated a delinquent child.” He also filed a petition for a
writ of habeas corpus and a motion to withdraw his guilty plea in September of
2012.
On September 28, 2012, Mr. King’s post-conviction application, his
petition for a writ of habeas corpus, and his motion to withdraw his guilty plea
(all relating to his 1984 burglary conviction) were denied by the state district
court. The court found that the two-year sentence had expired and that Mr.
King’s issues could have been raised in a direct appeal, but he had not applied to
withdraw his guilty plea, nor had he appealed his conviction or sought post-
conviction relief, and that he was therefore not entitled to relief after some
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twenty-eight years. The Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed the state district court’s decision, opining:
On June 8, 1984, Petitioner, represented by counsel, pled guilty to
one count of Burglary II and was sentenced to two years
imprisonment. Petitioner did not attempt to timely withdraw his plea
or otherwise appeal his conviction. Petitioner has been discharged
from custody, but now seeks an appeal out of time of his conviction
because “of delay caused by a juvenile court’s failure to cause
service of notice upon a juvenile, and a state statute interpretation
that a court order is required to view juvenile records.”
Order Affirming Denial of Application for Post-Conviction Relief at 1; R. Vol. 1
at 18. That Order further stated that Mr. King had not shown sufficient reason for
his failure to timely appeal his conviction, and it found that the doctrine of laches
was applicable and Mr. King had “forfeited consideration of these issues through
his own inaction.” Id. at 2.
Meanwhile, in April 2010, Mr. King filed an application for post-
conviction relief from the second degree murder conviction for which he is
serving his current 400-year sentence. In that application, Mr. King claimed that
three prior convictions were utilized to enhance his sentence, including his 1984
burglary conviction. He claimed that the burglary conviction was “voidable”
because he was seventeen at the time of the alleged offense and no certification
proceeding had been conducted to allow him to be prosecuted as an adult.
On January 9, 2012, the state district court denied that application, stating:
The Court hereby orders that the Supplemental Application for Post-
Conviction relief filed herein on the 8th day of April 2010 be denied
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for the following reasons. That each proposition of petitioner’s
application is an issue that was raised on his direct appeal, and if it
was not raised, it could have been. There are no new novel points of
law of facts that were not in existence at the time of petitioner’s
direct appeal.
Order Denying Petitioner’s Application for Post-Conviction Relief at 1; R. Vol. 1
at 182. Mr. King did not appeal that decision. 1
Mr. King then filed the instant petition for habeas relief under § 2254,
alleging, again, infirmities with his 1984 burglary conviction, which was used to
enhance his murder conviction for which he currently serves a 400-year sentence.
He alleges his burglary conviction is invalid because he “was induced to plead
guilty to an offense barred by double jeopardy clause by not being notified of
prior judgment.” Petition at 5; R. Vol. 1 at 8. As his second ground for relief,
Mr. King asserts that he was “denied due process by the fact he was charged as an
adult without being allowed to appeal the juvenile court’s decision.” Id. at 7.
The § 2254 petition was referred to a magistrate judge, who recommended
dismissal of the petition without prejudice for lack of jurisdiction. The magistrate
judge analyzed Mr. King’s arguments, concluding as follows:
1
Mr. King did, however, previously seek habeas relief from his second
degree murder conviction. He claimed that his double jeopardy rights were
violated when he was charged with second degree murder after he was implicitly
acquitted of first degree murder when his first degree murder conviction was
reversed on appeal by the OCCA. See King v. Scott, 129 F.3d 130 (Table), 1997
WL 706489 (10th Cir. 1997) (unpublished). The district court found no double
jeopardy violation and our court affirmed, finding that double jeopardy did not
prohibit his retrial for second degree murder after his conviction was reversed on
appeal. Id.
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Petitioner’s state conviction in Case No. CRF-83-181 [the
burglary conviction] is no longer open to direct or collateral attack in
its own right because he failed to pursue state judicial remedies while
they were available, and he has not demonstrated that “no channel of
review is available through no fault of the petitioner.” Davis v.
Roberts, 425 F.3d 830, 835 (10th Cir. 2005). Consequently,
Petitioner cannot challenge his enhanced sentence in Case No. CRF-
89-164 through a petition under § 2254 on the ground that his prior
conviction was unconstitutionally obtained. Because the Court lacks
jurisdiction to consider the merits of his claims, the Petition should
be dismissed on this basis.
Supplemental Report & Recommendation at 8; R. Vol. 2 at 14.
In so concluding, the magistrate judge relied upon the Supreme Court’s
decision in Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001), in
which the Court held that “once a state conviction is no longer open to direct or
collateral attack in its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively valid.” Id. at
403. “If that conviction is later used to enhance a criminal sentence, the
defendant generally may not challenge the enhanced sentence through a petition
under § 2254 on the ground that the prior conviction was unconstitutionally
obtained.” Id. at 403-04. And the magistrate judge noted that none of the limited
exceptions to that Lackawanna rule had any applicability to Mr. King’s situation.
Mr. King filed objections to the magistrate judge’s report and
recommendation. The district court reviewed the matter de novo, adopted the
magistrate judge’s report and recommendation, and dismissed Mr. King’s petition
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without prejudice for lack of jurisdiction. The district court did not address
whether a COA should issue, so Mr. King has requested issuance of a COA from
this court. That request is our threshold issue.
To obtain a COA, Mr. King must show that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). There can be no doubt that the district
court correctly determined that Mr. King’s claim must be dismissed for lack of
jurisdiction. Accordingly, we DENY a COA and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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