Sierra v. Hightower

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 9 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE PEREZ SIERRA,
Petitioner - Appellant,
v.
No. 02-6054
ELVIS HIGHTOWER; THE (D.C. No. 01-CV-605-A)
ATTORNEY GENERAL OF THE (W.D. Oklahoma)
STATE OF OKLAHOMA; STATE OF
OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.
Jose Perez Sierra was convicted of trafficking in illegal drugs after
conviction of two or more felonies in Oklahoma state court in 1994 and sentenced
to 200 years’ imprisonment and a $100,000 fine. In his present habeas petition,
*
After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Sierra asserts five grounds for relief: (1) the allegedly false testimony of a witness
against him, (2) the admission of certain evidence during state post-conviction
proceedings, (3) the failure of the state district court to address certain issues
during state post-conviction proceedings, (4) the discussion by the state trial court
of certain issues during state post-conviction proceedings, and (5) ineffective
assistance of counsel during a state post-conviction evidentiary hearing.
The district court denied relief on the first ground based on its conclusion
that the issue was untimely asserted under the applicable one-year statute of
limitations. We grant a certificate of appealability (COA) on the first ground but
affirm the denial of relief because our consideration of this difficult issue is
precluded by the state court’s dismissal of the claim on adequate and independent
state procedural grounds, namely Sierra’s failure to include a copy of the trial
court’s order with his post-conviction appeal. See Duvall v. Reynolds, 139 F.3d
768, 797 (10th Cir. 1998) (holding that Oklahoma’s rule mandating dismissal of
an appeal for failure to include a copy of the decision below is an adequate and
independent state procedural ground).
The district court also denied relief on the second through fifth grounds,
concluding that these issues were procedurally defaulted and that Sierra failed to
challenge the magistrate judge’s conclusion that these issues were not cognizable
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on federal habeas review. As to the second through fifth issues, we deny a COA
and dismiss the appeal substantially for the reasons given by the district court.
CONCLUSION
Sierra’s motion to proceed in forma pauperis is GRANTED. Sierra’s
motion for a COA is GRANTED PART and DENIED IN PART. As to the issue
on which COA is granted, the district court’s judgment is AFFIRMED. As to the
issues on which COA is denied, the appeal is DISMISSED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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