Morales, Jr. v. Jones ( 2009 )

Case: 09-6166 Document: 01018331743
FILED
Date Filed: United States Court 1 Appeals
12/16/2009 Page: of
Tenth Circuit
December 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
VECENTIE SONTIAGO MORALES,
JR.,
Petitioner-Appellant,
No. 09-6166
v. (Case No. 08-CV-01283-C)
(W.D. Okla.)
JUSTIN JONES, Director,
Respondent-Appellee.
ORDER *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Petitioner, a pro se state prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition relating to a
sentence revocation hearing. In 1999, Petitioner pled guilty to obtaining
merchandise or money by means of a false and bogus check following a former
felony conviction, and he was sentenced to a ten-year term of imprisonment with
all but the first eighteen months suspended. In 2005, a hearing was held on the
prosecution’s application to revoke the suspended sentence. The state district
*
This order is not binding precedent, except under the doctrines of law of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.
Case: 09-6166 Document: 01018331743 Date Filed: 12/16/2009 Page: 2
court found that Petitioner had violated the terms of his probation, and the court
therefore revoked the suspended sentence and sentenced Petitioner to serve a term
of imprisonment of eight years and six months. The revocation and sentence were
affirmed on direct appeal, and Petitioner’s request for post-conviction relief was
denied by the state district court and again on appeal. Petitioner then filed the
instant federal habeas petition, in which he challenged the legality of the original
suspended sentence, 1 the state court’s decision to revoke the entire suspended
portion of the sentence, several procedural aspects of the revocation proceeding, a
restitution order given in the revocation proceeding, and the effectiveness of his
appellate counsel.
The case was referred to a magistrate judge, who determined that Petitioner
was not entitled to federal habeas relief on any of his claims. The magistrate
judge concluded that most of the claims were procedurally defaulted because
Petitioner did not raise these arguments in his direct appeal and did not claim in
his petition for state post-conviction relief that his appellate counsel was
ineffective for failing to raise these claims. See Murray v. Carrier, 477 U.S. 478,
488 (1986). As for the claim that the original suspended sentence was invalid, the
1
Petitioner argued that the trial court did not have authority under
Oklahoma law to suspend any portion of the sentence because Petitioner had more
than one prior felony conviction at the time. See Davis v. State, 845 P.2d 194,
197 (Okla. Crim. App. 1993); Bumpus v. State, 925 P.2d 1208, 1210 (Okla. Crim.
App. 1996). The ten-year sentence itself was within the statutory range of
punishment for this offense.
-2-
Case: 09-6166 Document: 01018331743 Date Filed: 12/16/2009 Page: 3
magistrate judge determined that this claim was time-barred because it should
have been raised within one year after the original conviction became final. The
magistrate judge concluded that Petitioner had properly exhausted his claim that
counsel was ineffective for failing to assert the invalidity of the original
suspended sentence. However, on the merits, the magistrate judge concluded that
Petitioner had not satisfied the standard set forth in Strickland v. Washington, 466
U.S. 668, 689 (1984), in light of the Oklahoma Court of Criminal Appeals’
holding that state law would not permit appellate counsel to use the revocation
appeal to challenge Petitioner’s original sentence. Finally, as for Petitioner’s
argument that the state district court erred in revoking the entire suspended
sentence and sentencing him to serve eight and one-half years of imprisonment,
the magistrate judge concluded that Petitioner had not demonstrated that this
sentence was grossly disproportionate to the severity of the crime.
The district court agreed with the magistrate judge’s conclusions and
therefore denied Petitioner’s habeas petition. Petitioner now seeks a certificate of
appealability as to all of the claims raised in that petition. Rather than addressing
the procedural grounds on which his claims were dismissed, he focuses on the
merits of the asserted claims. However, after thoroughly reviewing the record on
appeal, Petitioner’s filings in this court, the magistrate judge’s report and
recommendation, and the district court’s ruling, we conclude that reasonable
jurists would not debate the correctness of the dismissal of most of his claims on
-3-
Case: 09-6166 Document: 01018331743 Date Filed: 12/16/2009 Page: 4
procedural grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). As for
those claims that were considered on the merits, we conclude that reasonable
jurists would not find the magistrate judge’s assessment of these claims debatable
or wrong. See id. Therefore, for substantially the reasons set forth by the
magistrate judge and district court, we DENY Petitioner’s request for a certificate
of appealability and DISMISS the appeal. We GRANT Petitioner’s motion for
leave to proceed in forma pauperis.
Entered for the Court
Monroe G. McKay
Circuit Judge
-4-