Bolton v. Franklin, (10th Cir. 2006)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN WESLEY BOLTON,

Petitioner - Appellant,

No. 06-6132

v.

W. Dist. Okla.

ERIC FRANKLIN; THE ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents - Appellees.

(D.C. No. CIV-05-1205-HE)

ORDER DENYING CERTIFICATE OF APPEALABILITY
href="#N_*_" name="txt*">(*)

Before HARTZ,
name="9">EBEL, and TYMKOVICH,

Circuit Judges.

John Wesley Bolton was convicted in Oklahoma state court of trafficking

in illegal drugs. His conviction was affirmed by the Oklahoma Court of Criminal

Appeals (OCCA). Mr. Bolton filed an application for postconviction relief in

state court, and the OCCA denied relief. On October 14, 2005, Mr. Bolton filed

a habeas application under 28 U.S.C. 2254 in the United States District Court

for the Western District of Oklahoma. The magistrate judge recommended

denying his application, and on March 28, 2006, the district court did so.

Mr. Bolton filed a notice of appeal on March 31, and now requests a certificate

of appealability (COA) from this court, see 28 U.S.C. 2253(c)(1) (requiring

COA). We deny a COA.

Mr. Bolton challenges the district court's ruling on two grounds. First, he

contends that his constitutional rights to due process and equal protection were

violated when the state trial court enhanced his sentence based on a prior felony

manslaughter conviction, felony robbery conviction, and misdemeanor marijuana

conviction. Second, he contends that his trial counsel was ineffective for failing

to challenge the use of the prior convictions to enhance his sentence.

A COA will issue "only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. 2253(c)(2). This standard

requires "a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court's resolution of the constitutional claim was either

"debatable or wrong." Id.

I. IMPROPER ENHANCEMENT

The magistrate judge recommended rejecting Mr. Bolton's improper-enhancement claim

on the ground that a misapplication of state law cannot

support federal habeas relief. We agree. "We will not second guess a state

court's application or interpretation of state law on a petition for habeas unless

such application or interpretation violates federal law." Bowser v. Boggs, 20

F.3d 1060, 1065 (10th Cir. 1994). And to the extent that Mr. Bolton is arguing

based on Apprendi v. New Jersey, 530 U.S. 466 (2000), that his federal due-process

rights were violated by the allegedly improper enhancement based on his

prior convictions, the argument is without merit. See United States v. Booker,

543 U.S. 220 , 231 (2005) ("We held [in Apprendi]: 'Other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.'" (emphasis added)).

Additionally, insofar as Mr. Bolton is asserting an equal-protection claim,

he has offered no factual or legal support, nor even a coherent argument on the

point. No reasonable jurist could dispute the district court's denial of this claim.

II. INEFFECTIVENESS

The magistrate judge recommended rejecting Mr. Bolton's ineffectiveness

claim on the ground that in state postconviction proceedings Mr. Bolton "had

asserted the same theory [related to enhancement of his sentence with the prior

convictions] and the OCCA rejected the claim on the merits." (Rep. and

Recommendation at 6, Feb. 28, 2006.) The OCCA had indeed rejected an

appellate-counsel-ineffectiveness claim related to the sentence enhancement

because the improper-enhancement claim itself was meritless:

We note that Petitioner's sentence, as assessed in this case, was

within the proper range for the offense charged. We also find no

merit in Petitioner's claim that his conviction was improperly

enhanced by his misdemeanor drug conviction. The record presented

to this Court does not support such a conclusion. With regard to

Petitioner's claim of ineffective assistance of appellate counsel, we

agree with the District Court's conclusion that the underlying claim

upon which Petitioner bases his claim of ineffective assistance of

appellate counsel is without merit, therefore counsel was not

ineffective for failing to raise the issue.

R. Doc. 15 Ex. 4 at 3-4. The OCCA also stated that "Petitioner had two (2) prior

felony convictions that were properly considered by the District Court in

imposing Petitioner's sentence." R. Doc. 15 Ex. 4 at 3. Again, we will not

second guess a state court's interpretation of its own law on habeas review. See

Bowser, 20 F.3d at 1065. Given the OCCA's ruling rejecting on the merits

Mr. Bolton's claim that his conviction was improperly enhanced, he was not

prejudiced by his state-court attorney's failure to raise the claim. Accordingly,

his ineffectiveness claim must fail. See United States v. Cook, 45 F.3d 388, 393

(10th Cir. 1995) (counsel is not ineffective for failing to raise meritless claims).

No reasonable jurist would decide otherwise.

We DENY a COA and DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.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.

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