Lacy v. Parker , 359 F. App'x 25 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 28, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
OTIS H. LACY,
Petitioner - Appellant,
No. 09-6095
v. (W.D. Oklahoma)
(D.C. No. 5:08-CV-01094-R)
DAVID PARKER, Warden,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Otis Lacy’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
Lacy seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Lacy’s request to proceed
on appeal in forma pauperis. Because Lacy has not, however, “made a substantial
showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies
his request for a COA and dismisses this appeal.
A jury convicted Lacy in Oklahoma state court of Procuring Child
Pornography and Distributing Child Pornography, both after former conviction of
a felony, and two counts of Contributing to the Delinquency of a Minor. Pursuant
to the jury’s recommendation, the state trial court sentenced Lacy to ten years on
the Procuring conviction, fifteen years on the Distributing conviction, and one
year on each of the Contributing convictions. The trial court ordered the
sentences to run concurrently. On direct appeal, the Oklahoma Court of Criminal
Appeals (“OCCA”) set aside one of Lacy’s Contributing convictions on the
ground it arose out of the same act as the Distributing conviction, thereby
violating the Oklahoma statutory prohibition against multiple punishments for a
single act. Lacy v. State, No. F-2006-723, slip op. at 2 (Okla. Crim. App. May
23, 2007) (unpublished summary opinion). The OCCA further concluded the trial
court erred when it failed to instruct the jury that Lacy would not be eligible for
parole until he served eighty-five percent of his sentence. Id. at 3-5. To remedy
this error, the OCCA modified Lacy’s sentences so they would all run
concurrently. Id. at 5. Lacy then filed a Motion for Order Nunc Pro Tunc,
advising the OCCA the trial court had already ordered his sentences to run
concurrently and requesting that the OCCA modify his sentence in some favorable
way. The OCCA declined Lacy’s request, concluding “the law and evidence do
not require modification of Lacy’s sentence.” Lacy v. State, 171 P.3d 911, 913
(Okla. Crim. App. 2007).
After exhausting his Oklahoma post-conviction remedies, Lacy v. State, No.
PC-2007-838, slip op. at 1-2 (Okla. Crim. App. Nov. 2, 2007), Lacy filed the
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instant § 2254 petition in federal district court, raising seven grounds for relief.
The matter was referred to federal Magistrate Judge Valerie Couch for initial
proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In a comprehensive and
meticulous Report and Recommendation, Magistrate Judge Couch analyzed on the
merits each ground for relief set out in Lacy’s § 2254 habeas petition and
recommended that the district court deny relief. After augmenting the already
extensive analysis set out by Magistrate Judge Couch, the district court adopted
the Report and Recommendation in its entirety and denied Lacy’s petition.
The granting of a COA is a jurisdictional prerequisite to Lacy’s appeal
from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To be entitled to a COA, Lacy must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he must demonstrate “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quotations
omitted). In evaluating whether Lacy has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Lacy need not
demonstrate his appeal will succeed to be entitled to a COA, he must “prove
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something more than the absence of frivolity or the existence of mere good faith.”
Id.Having undertaken a review of Lacy’s appellate filings, the district court’s
Order, the Magistrate Judge’s well-stated Report and Recommendation, and the
entire record before this court, we conclude Lacy is not entitled to a COA. In so
concluding, this court has nothing to add to the comprehensive analysis set out by
Magistrate Judge Couch in her Report and Recommendation. Accordingly, this
court DENIES Lacy’s request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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