Gortemiller v. Ward ( 1998 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 10 1998
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    CHRISTOPHER GORTEMILLER,
    Petitioner-Appellant,
    v.                                                          No. 98-5119
    RON WARD and ATTORNEY                                 (D.C. No. 96-CV-569-C)
    GENERAL OF THE STATE OF                                     (N.D. Okla.)
    OKLAHOMA,
    Respondents-Appellees.
    ORDER AND JUDGMENT*
    Before, SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
    Petitioner Christopher Gortemiller pled guilty in Oklahoma state court to two
    counts of sexually abusing a minor child and was sentenced to two consecutive fourteen
    year terms of imprisonment. Petitioner did not move to withdraw his guilty plea and did
    not perfect a direct criminal appeal. Instead, he unsuccessfully sought post-conviction
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    **
    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)(C); 10th Cir. R. 34.1.9. The case therefore is
    ordered submitted without oral argument.
    relief in state court. Thereafter, Petitioner filed a petition for a writ of habeas corpus
    under 
    28 U.S.C. § 2254
     in federal district court raising essentially three claims: (1) he
    received ineffective assistance of trial counsel; (2) his two convictions violate the double
    jeopardy clause; and (3) his guilty plea was involuntary. In a thorough order, the district
    court rejected Petitioner’s claims on the merits and denied his petition. The court
    subsequently denied Petitioner’s application for a certificate of appealability. See 
    28 U.S.C. § 2253
    (c). 1 His renewed application is before us.
    A defendant may appeal the denial of a habeas corpus petition only if a “circuit
    justice or judge” issues a certificate of appealability. 
    28 U.S.C. § 2253
    (c)(1)(A). A
    certificate of appealability “may issue . . . only if the applicant has made a substantial
    showing of the denial of a constitutional right.” 
    Id.
     §2253(c)(2); United States v.
    Simmonds, 
    111 F.3d 737
    , 746 (10th Cir. 1997). We conclude that Petitioner has failed to
    make the required showing.
    We have thoroughly reviewed Defendant’s application for a certificate of
    appealability, his brief, the district court’s orders, and the entire record before us. We
    conclude that Petitioner’s claims are meritless substantially for the reasons set forth in the
    district court’s order denying the petition. Because Petitioner has not made a substantial
    1
    Petitioner filed his § 2254 petition two months after enactment of the AEDPA.
    Thus, the provisions of the AEDPA apply in this case. See Lindh v. Murphy, 
    117 S. Ct. 2059
    , 2068 (1997) (provision of AEDPA concerning certificate of appealability applies
    only to cases filed after AEDPA’s enactment date).
    2
    showing of the denial of a constitutional right, we deny his request for a certificate of
    appealability and dismiss the appeal.
    APPLICATION DENIED; APPEAL DISMISSED.
    Entered for the Court,
    Bobby R. Baldock
    Circuit Judge
    3
    

Document Info

Docket Number: 98-5119

Filed Date: 12/10/1998

Precedential Status: Non-Precedential

Modified Date: 4/18/2021