Monks v. Massie ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 23 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VERNA MONKS, a/k/a Verna
Stafford,
Petitioner-Appellant,
No. 97-6417
v. (D.C. No. CIV-97-645-A)
(W.D. Okla.)
NEVILLE MASSIE,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
Appellant, Verna Monks, appeals the district court’s denial of her petition
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 1 Before
*
This order and judgment is not binding precedent, except under the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.
1
After examining appellant’s brief and the appellate record, this panel has
determined unanimously to grant appellant’s request for a decision on the brief
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
proceeding on appeal, Monks must obtain a certificate of appealability from this
court, which requires “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
Monks pled guilty to two counts of second degree murder and was given
two concurrent indeterminate sentences of ten years’ to life imprisonment. After
successfully challenging the validity of those sentences, Monks was resentenced
by a different judge, who imposed two consecutive life sentences based upon
evidence developed at the second sentencing hearing of the grievous and
outrageous nature of the crimes for which she was convicted and other criminal
conduct. Monks challenges the harsher sentences on the ground of judicial
vindictiveness. A presumption of vindictiveness will not arise when, as here,
“a different judge imposes the second sentence and provides an on-the-record,
wholly logical, nonvindictive reason for the sentence.” Macomber v. Hannigan,
15 F.3d 155, 156 (10th Cir. 1994) (quotation omitted). Absent a presumption of
vindictiveness, Monks bears the burden of demonstrating actual vindictiveness,
see id. at 157, which she has failed to do.
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Therefore, Monks’ application for a certificate of appealability is DENIED,
and the appeal is DISMISSED.
Entered for the Court
David M. Ebel
Circuit Judge
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