Bell v. State of Oklahoma ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 14 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
GERALD FRANKLIN BELL,
Petitioner-Appellant,
v.
No. 00-5150
STATE OF OKLAHOMA; TULSA (N. District of Oklahoma)
COUNTY DISTRICT COURT; RON (D.C. No. 97-CV-584-K)
WARD; THE ATTORNEY GENERAL
OF THE STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, 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This order and judgment is not binding precedent, except under the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 Gerald Franklin Bell’s pro se request for a
certificate of appealability (“COA”). Bell seeks a COA so that he can appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. See 28 U.S.C. §
2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254
petition unless the petitioner first obtains a COA). Before he is entitled to a
COA, Bell must make a “substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Bell may make this showing by demonstrating that the
issues raised are debatable among jurists, a court could resolve the issues
differently, or that the questions presented deserve further proceedings. See
Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000).
Bell raised three claims in his § 2254 petition: (1) an improper jury
instruction was given at his trial, (2) his sentence was improperly enhanced by
his prior felony convictions, and (3) both his trial and appellate counsel were
ineffective. In a comprehensive Order, the district court, relying on controlling
Supreme Court and Tenth Circuit authority, concluded that Bell’s first two claims
were procedurally barred and that his third claim lacked merit. This court has
conducted an equally comprehensive de novo review of Bell’s request for a COA
and accompanying brief, the district court’s Order, and the entire record on
appeal. In his application for COA and opening brief, Bell has not identified any
error in the district court’s analysis. It is unnecessary for this court to expound
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on the district court’s exhaustive analysis which correctly resolved Bell’s claims.
Accordingly, this court denies Bell’s request for a COA for substantially those
reasons set forth in the district court's Order dated June 26, 2000 and filed June
27, 2000, and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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