FILED
United States Court of Appeals
Tenth Circuit
April 24, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
THOMAS TERRILL,
Petitioner–Appellant, No. 12-7000
v. (D.C. No. 09-CV-00193-JHP-KEW)
JAMES RUDEK, (E.D. Oklahoma)
Respondent–Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY, and HOLMES, Circuit Judges.
Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition. In the state court
proceedings, Petitioner was convicted of manslaughter and sentenced to twenty-nine
years’ imprisonment. He filed an appeal with the Oklahoma Court of Criminal Appeals
in which he argued, inter alia, that he received ineffective assistance of counsel at
sentencing and that “the trial court’s erroneous decisions [at sentencing] were an abuse of
discretion which denied Mr. Terrill’s right to due process and a fair []sentencing hearing
under the Fifth and Fourteenth Amendments to the United States Constitution.” (R. at
*
This order is not binding precedent except under the doctrines of law of the case,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.
56.) The Oklahoma Court of Criminal Appeals rejected these arguments and affirmed the
conviction and twenty-nine-year sentence.1
Petitioner then filed the instant habeas petition, in which he again raised claims of
ineffective assistance and trial court errors in the sentencing proceeding. The district
court denied the petition, holding that the Oklahoma Court of Criminal Appeals’ rejection
of Petitioner’s ineffective assistance claim was not contrary to or an unreasonable
application of clearly established federal law and that Petitioner’s claims of error in the
sentencing proceeding did not state a valid federal claim for relief. See Dennis v. Poppel,
222 F.3d 1245, 1258 (10th Cir. 2000) (“[C]hallenges to [the state trial court’s sentencing]
decision are not generally constitutionally cognizable, unless it is shown the sentence
imposed is outside the statutory limits or unauthorized by law.”).
In his request for a certificate of appealability, Petitioner argues the district court
erroneously treated Petitioner’s sentencing claim as a matter of state law and failed to
consider his constitutional due process arguments. We have thoroughly considered
Petitioner’s due process arguments and conclude that reasonable jurists would not debate
the district court’s determination that there was no constitutionally cognizable error in the
sentencing proceeding. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We likewise
conclude that reasonable jurists would not debate the district court’s resolution of
Petitioner’s ineffective assistance claim. Therefore, for substantially the same reasons
1
The Oklahoma Court of Criminal Appeals vacated the trial court’s sentence of
$500,000 in restitution, holding that this sentence was arbitrary and had not been
determined with reasonable certainty.
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given by the district court, we DENY Petitioner’s request for a certificate of appealability
and DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis on appeal is
GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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