Coffman v. Higgins ( 2006 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    March 23, 2006
    TENTH CIRCUIT                         Elisabeth A. Shumaker
    Clerk of Court
    MICHAEL COFFMAN,
    Petitioner - Appellant,
    No. 05-7122
    v.                                               (D.C. No. 04-CV-250-W)
    (E.D. Okla.)
    HASKELL HIGGINS, Warden,
    Respondent - Appellee.
    ORDER
    DENYING CERTIFICATE OF APPEALABILITY
    Before KELLY, McKAY, and LUCERO, Circuit Judges.
    Michael Coffman, an inmate appearing pro se, seeks a certificate of
    appealability (“COA”) to appeal from the district court’s dismissal of his petition
    for a writ of habeas corpus filed pursuant to 
    28 U.S.C. § 2254
    . In order to merit a
    COA, Mr. Coffman must make “a substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003) (internal quotation omitted). To make such a showing, he must
    demonstrate that reasonable jurists would find the district court’s resolution of the
    constitutional issue contained in his motion debatable or wrong. Id.; Slack v.
    McDaniel, 
    529 U.S. 473
    , 483-84 (2000). Because Mr. Coffman has not made that
    showing, we deny a COA and dismiss the appeal.
    On August 30, 1994, Mr. Coffman pleaded guilty to two counts of running
    a road block (counts I and II) and to driving under the influence of intoxicating
    beverage after former conviction of two felonies (count III). On counts I and II,
    he was sentenced to 20 years imprisonment with 10 years suspended. On count
    III, he was sentenced to 5 years imprisonment. All sentences ran concurrently.
    On January 7, 1998, the state district court granted post-conviction relief and
    modified the sentences on counts I and II to 5 years, and count III to 5 years
    suspended, all to run consecutively. Upon state application and after a hearing,
    the court revoked Mr. Coffman’s 5 year suspended sentence on May 23, 2003.
    Mr. Coffman appealed the revocation arguing in part that the State violated
    double jeopardy by changing count III to a suspended sentence and subsequently
    revoking it. The Oklahoma Court of Criminal Appeals (“OCCA”) held (1) its
    review was limited to the validity of the revocation order pursuant to Rule
    1.2(D)(4), Rules of the OCCA, and (2) any challenge to the original or amended
    sentence was required to be brought via a direct appeal or post-conviction
    procedures, and Mr. Coffman did not appeal the original sentence, or the district
    court’s amended sentence (modified on post-conviction). R. Doc. 15, Ex. 4 at 2.
    Mr. Coffman filed his federal habeas petition on November 1, 2005. The
    district court, adopting the magistrate judge’s findings and recommendation,
    -2-
    determined that Mr. Coffman’s double jeopardy claim was procedurally barred.
    The magistrate judge determined that Mr. Coffman had not shown cause and
    prejudice, nor a fundamental miscarriage of justice, that might excuse the
    procedural bar. See Coleman v. Thompson, 
    501 U.S. 722
    , 749-50 (1991); see also
    Demarest v. Price, 
    130 F.3d 922
    , 941-42 (10th Cir. 1997). On appeal, Mr.
    Coffman contends that the 5-year sentence on count III was discharged prior to
    the state district court modifying it to a suspended sentence. He argues that this
    violates federal double jeopardy protection and due process.
    Where the district court dismisses a petition on procedural grounds, a COA
    requires the inmate to demonstrate that it is reasonably debatable whether (1) the
    petition states a valid claim of the denial of a constitutional right, and (2) the
    district court’s procedural ruling is correct. Slack, 
    529 U.S. at 484
    . Mr.
    Coffman’s lack of legal training does not constitute cause for the procedural
    default because there is no right to counsel in post-conviction proceedings.
    Coleman, 
    501 U.S. at 757
    . Insofar as Mr. Coffman attempts to demonstrate
    factual innocence that might excuse procedural default, it surely appears that Mr.
    Coffman had good reason not to appeal the amended sentence as it was beneficial
    to him overall, reducing the sentence on counts I and II and suspending the
    sentence on count III. R. Doc. 15 at 6. In sum, the district court’s resolution of
    the procedural issue is not reasonably debatable. As for the due process claim,
    -3-
    Mr. Coffman did not raise it below and thus it is deemed waived. See Smith v.
    Secr’y of New Mexico Dept. of Corr., 
    50 F.3d 801
    , 814 n.22 (10th Cir. 1995).
    -4-
    We DENY Mr. Coffman’s application for a COA and DISMISS the appeal.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -5-
    

Document Info

Docket Number: 05-7122

Judges: Kelly, McKay, Lucero

Filed Date: 3/23/2006

Precedential Status: Precedential

Modified Date: 11/5/2024