Jarrell v. Jordan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
OSCAR STEPHEN JARRELL,
Petitioner-Appellant,
v. No. 00-5181
(D.C. No. 99-CV-51-H)
LENORA JORDAN, Warden, (N.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , BALDOCK , and LUCERO , 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This order and judgment is not binding precedent, except under the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.
In September 1996, petitioner Oscar Stephen Jarrell pleaded guilty in an
Oklahoma state court to four counts, including first degree burglary and wearing
a mask in the commission of a crime, and was sentenced to four concurrent prison
terms, the longest of which was ten years. In January 1999, he filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising a variety of issues:
ineffective assistance of counsel; denial of right to appeal from guilty plea;
unknowing and involuntary guilty plea due to mental incompetency; illegal
seizure of evidence; false arrest; failure of prosecution to disclose evidence;
perjured testimony by arresting officer; and denial of right to speedy trial. The
district court determined that most issues were procedurally barred because they
previously had been denied on independent and adequate grounds in state court.
The court rejected on the merits petitioner’s claim that he was mentally
incompetent to enter his guilty pleas. Petitioner filed a notice of appeal, and the
matter is now before us on his request for a certificate of appealability (COA),
which the district court has previously denied.
To be entitled to a COA with respect to his substantive competency claim,
petitioner must make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c). To be entitled to a COA with respect to the district
court’s determination that he had procedurally defaulted most of his claims,
petitioner must show that it is debatable whether the district court was correct in
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this procedural ruling and that it is debatable whether the petition states a valid
claim of the denial of a constitutional right. Slack v. McDaniel , 529 U.S. 473,
484 (2000).
Petitioner contends that he was mentally incompetent to enter his guilty
pleas because he was on suicide watch and psychotropic drugs at the time and that
the drugs made his mouth so numb that he physically could not speak. The record
indicates, however, that at his plea hearing, he verbally stated that he had
discussed the matters with his counsel, understood the rights he was waiving, and
that he understood and had discussed with counsel a form he admitted he had
signed called “Findings of Fact--Acceptance of Guilty Plea.” On this form, he
indicated that he was not taking any medication or was failing to take any
prescribed medication, that he understood the nature and consequences of the
proceeding, and that he committed the crimes as charged. Based on the testimony
at the hearing and the form, the state court found that the guilty pleas were
knowing and voluntary. We must presume this factual finding to be correct,
28 U.S.C. § 2254(e)(1), and petitioner has provided nothing but conclusory
allegations to challenge this finding. This is insufficient to make the showing
necessary for a COA to issue. See Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir.
1996) (“Solemn declarations in open court carry a strong presumption of verity.
The subsequent presentation of conclusory allegations unsupported by specifics
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is subject to summary dismissal, as are contentions that in the face of the record
are wholly incredible.”) (quotation omitted).
The district court found petitioner’s other claims procedurally barred
because the petitioner had not moved to withdraw his guilty pleas or taken a
direct appeal and the Oklahoma Court of Criminal Appeals had dismissed his
appeal of the denial of post-conviction relief because petitioner violated a court
rule by failing to attach a copy of the state district court’s order to his petition in
error. See Duvall v. Reynolds , 139 F.3d 768, 797 (10th Cir. 1998) (upholding
determination of procedural default on same ground). As in the district court,
petitioner on appeal has failed to demonstrate the cause and prejudice or
fundamental miscarriage of justice necessary to excuse his procedural default.
Petitioner has thus not demonstrated that it is debatable whether the district
court’s procedural ruling was correct.
Petitioner’s application for a certificate of appealability is DENIED and
the appeal is DISMISSED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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