Dial v. Champion, (10th Cir. 2001)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

DIALLO DEJUAN DIAL,

Petitioner-Appellant,

v.



RON CHAMPION, Warden, and

DREW EDMONDSON, Attorney

General for the State of Oklahoma,

Respondents-Appellees.

No. 00-6228

(D.C. No. CIV-99-1110-R)

(W.D. Okla.)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before EBEL,
name="9">KELLY and LUCERO, Circuit

Judges.

Petitioner-Appellant Diallo Dejuan Dial appeals the district court's

dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2254. We agree

with the district court's finding that Dial has not presented claims for which

relief should be granted. Accordingly, we decline to issue a certificate of

appealability and dismiss the appeal.

On February 19, 1997, Dial was convicted of first-degree murder after a

trial by jury in Oklahoma. He was sentenced to life imprisonment without parole.

He appealed his conviction and sentence to the Oklahoma Court of Criminal

Appeals (OCCA), alleging that the trial court erred in admitting photographs of

the murder and that his sentence was excessive. On February 18, 1998, the

OCCA affirmed the conviction and sentence.

Dial then filed for state post-conviction relief, arguing that (1) the trial

court improperly denied his request for jury instructions on the voluntary

intoxication defense; (2) the trial court improperly admitted his confession; (3)

the disparity between his sentence and his co-defendant's sentence violated equal

protection of the laws; (4) his sentence of life without parole was void as

arbitrary and devoid of discretion; and (5) he was denied effective assistance of

appellate counsel due to counsel's failure to raise the four foregoing issues on

appeal. The state district court denied relief, and the OCCA upheld the ruling.

Dial requested the federal district court for the Western District of

Oklahoma grant him habeas corpus relief under 28 U.S.C. § 2254. He raised the

same five claims in his federal habeas petition as he did in his state post-conviction petition. The

case was assigned to a federal magistrate judge, who

found all five claims to be without merit. Thus, on May 26, 2000, the magistrate

judge recommended that Dial's petition be dismissed.

Dial objected to the magistrate's recommended disposition, and raised four

additional issues. The federal district court refused to consider the additional

issues, deeming them waived, and adopted the magistrate judge's Report and

Recommendation.

Dial, now acting pro se, appealed to this court. He formally presents the

same five issues that were raised to the magistrate judge, and he alludes to a few

of the new issues urged upon the federal district court. For substantially the

reasons stated in the district court's order and the magistrate judge's Report and

Recommendation, we decline to issue a certificate of appealability. Since this

appeal is without merit we deny his motion to proceed in forma pauperis. See

Fed. R. App. P. 24. This appeal is accordingly DISMISSED.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTES

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*.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.

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