Cooksey v. Champion ( 1999 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 7 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    HAROLD DEAN COOKSEY,
    Petitioner-Appellant,
    No. 99-5008
    v.
    (N. District of Oklahoma)
    (D.C. No. 95-CV-1141-E)
    RON CHAMPION, Warden; L. L.
    YOUNG,
    Respondents-Appellees.
    ORDER AND JUDGMENT *
    Before TACHA, McKAY, and MURPHY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case 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    This order and judgment is not binding precedent, except under the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.
    This case is before the court on pro se petitioner Harold D. Cooksey’s
    application for a certificate of probable cause (“CPC”). Cooksey seeks a CPC so
    that he can appeal the district court’s denial of his 
    28 U.S.C. § 2254
     petition. See
    
    28 U.S.C. § 2253
     (1994). 1 Because Cooksey has not made a substantial showing
    of the denial of a federal right, this court denies Cooksey’s request for a CPC and
    dismisses this appeal.
    The district court meticulously set out the complicated procedural history
    surrounding this case. This court will not repeat that task. Instead, for purposes
    of this appeal, it is sufficient to note that Cooksey was convicted 1993 in
    Oklahoma state court of one count of Larceny of Merchandise from a Retailer,
    After the Former Conviction of Two or More Felonies, and one count of Incurring
    Bail Forfeiture, After the Former Conviction of Two or More Felonies. In federal
    district court, Cooksey raised the following five challenges to the validity of his
    1
    Cooksey filed his original § 2254 petition on May 10, 1995, well before
    the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
    (“AEDPA”). Thus, the AEDPA’s revised standards of review and certificate-of-
    appealability requirements do not apply. See Lindh v. Murphy, 
    521 U.S. 320
    (1997); United States v. Kunzman, 
    125 F.3d 1363
    , 1364 n. 2 (10th Cir.1997).
    Nevertheless, Cooksey must still obtain a CPC under pre-AEDPA law in order to
    appeal the district court’s denial of his § 2254 habeas petition. See 
    28 U.S.C. § 2253
     (1994) (“An appeal may not be taken to the court of appeals from the final
    order in a habeas corpus proceeding where the detention complained of arises out
    of process issued by a State court, unless the justice or judge who rendered the
    order or a circuit justice or judge issues a certificate of probable cause.”).
    -2-
    larceny and bail forfeiture convictions: (1) his convictions were improperly
    enhanced by a constitutionally invalid Texas felony conviction; (2) the state trial
    court erred in allowing the state to introduce prior misdemeanor convictions in the
    larceny case and in failing to give the jury a limiting instruction on the use of the
    misdemeanors; (3) the state failed to put Cooksey on notice that it was relying on
    misdemeanor convictions to revitalize otherwise “stale” felony convictions; (4)
    the state trial court erred when it allowed the state to present evidence concerning
    a dismissed charge that was part of the same transaction as one of the predicate
    felonies; and (5) the evidence was insufficient to support the conviction for
    incurring bail forfeiture.
    In two thorough orders, the district court denied relief. As to Cooksey’s
    claim regarding the validity of his Texas felony, which felony was apparently
    used to enhance both his larceny and bail forfeiture convictions, the district court
    concluded that it was procedurally barred from addressing the merits of the claim
    because Cooksey had failed to raise it on direct appeal to the Oklahoma Court of
    Criminal Appeals (“OCCA”). After further briefing, the district court further
    concluded that Cooksey had failed to demonstrate that his failure to raise the
    claim was excused by cause and prejudice or that review of the claim on the
    merits was necessary to prevent a fundamental miscarriage of justice. With
    regard to Cooksey’s second and fourth claims, the district court noted that
    -3-
    Cooksey’s challenges centered exclusively on whether the OCCA had
    misinterpreted state law in affirming Cooksey’s conviction. As noted by the
    district court, § 2254 does not empower federal courts to review a state court’s
    interpretation or application of its own laws. See Lujan v. Tansy, 1031, 1036 (10 th
    Cir. 1993). The district court rejected Cooksey’s third claim, whether Cooksey
    had sufficient notice that the state intended to use his misdemeanors to revive
    stale felony convictions, as not supported by the record. According to the district
    court, it was readily apparent from the charging documents that the state would
    present intervening misdemeanors to revive the stale felonies. Finally, the district
    court rejected Cooksey’s fifth claim, concluding that the record contained more
    than sufficient evidence from which a rational juror could conclude that Cooksey
    had willfully failed to appear at his preliminary hearing.
    This court has undertaken a thorough review of Cooksey’s application for a
    CPC and appellate brief, the district court orders denying relief, and the entire
    record on appeal. That close review demonstrates that the district court’s
    resolution of Cooksey’s claims is not reasonably debatable, subject to a different
    resolution on appeal, or deserving of further proceedings. Barefoot v. Estelle,
    
    463 U.S. 880
    , 883 n.4 (1983). Accordingly, Cooksey is not entitled to a CPC. 
    Id.
    Cooksey’s request for a CPC is hereby DENIED for substantially those reasons
    -4-
    set out in the district court’s orders dated December 5, 1997 and December 15,
    1998. Cooksey’s appeal is therefore DISMISSED.
    ENTERED FOR THE COURT:
    Michael R. Murphy
    Circuit Judge
    -5-
    

Document Info

Docket Number: 99-5008

Filed Date: 6/7/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021