Connally v. Boone ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
GILBERT H. CONNALLY,
Petitioner-Appellant,
No. 97-6221
v. (W. Dist. of Oklahoma)
(D.C. No. CIV-95-1910)
BOBBY BOONE,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. The cause 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This order and judgment is not binding precedent, except under the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.
Petitioner Gilbert H. Connally, appearing pro se, petitioned the district
court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court
denied the petition. We DENY Connally a certificate of probable cause and
DISMISS this appeal. 1
Connally was convicted by an Oklahoma jury of distribution of a controlled
dangerous substance and was sentenced to a sixty-year prison term. His
conviction was upheld on direct appeal and several subsequent state
postconviction proceedings failed to provide Connally relief from the conviction
or sentence. Connally then filed the instant petition pursuant to § 2254 alleging
seventeen claims of error. After the claims were referred to a magistrate judge
for initial proceedings, the magistrate recommended that Connally’s petition be
denied. Connally thereafter filed written objections which presented the
following two issues for the district court’s review: (1) whether his Sixth
Amendment rights were violated through an invalid waiver of counsel; and (2)
1
Because Connally filed his habeas petition in 1995, before the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 State. 1214, the AEDPA’s certificate of appealability
requirements do not apply to this appeal. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997). Instead, the pre-AEDPA certificate of probable
cause requirements apply here. Nevertheless, despite the label this court attaches
to the requirements, Connally’s substantive burden is the same. See Lennox v.
Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997),
overruled in part by Kunzman, 125 F.3d at 1364 n.2. Accordingly, this court will
liberally construe Connally’s application for a certificate of appealability as an
application for a certificate of probable cause.
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whether he had sufficiently established his actual innocence to overcome the
procedural bar to the review of his other claims of error. In response to
Connally’s limited objections, the district court correctly noted that Connally had
waived review of the magistrate’s recommendations as to issues not identified in
the objections. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
As to the specific objections raised by Connally, the district court concluded the
record established a knowing, voluntary, and intelligent waiver of his right to
counsel and that Connally had failed to make a sufficient showing of actual
innocence to overcome the procedural bar.
This court has conducted a de novo review of Connally’s brief and
application for a certificate of probable cause, the magistrate’s Report and
Recommendation and district court’s Order, and the entire record on appeal. In
light of that review, we conclude that Connally has failed to make a “substantial
showing of the denial of a constitutional right” for substantially the reasons set
for in the district court’s order dated June 6, 1997. See Barefoot v. Estelle, 463
U.S. 880 & n.4 (1983) (holding that a certificate of probable cause should only
issue where petitioner has demonstrated the issues raised are (1) debatable among
jurists of reason, (2) a court could resolve the issues differently, or (3) the
questions presented are deserving of further proceedings.”). Accordingly, this
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court DENIES Connally a certificate of probable cause and DISMISSES the
appeal. Connally’s “Motion to Produce Exculpatory Evidence” is DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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