Laws v. Fatkin, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JESSIE RAY LAWS,

Petitioner - Appellant,

v.



BRENT FATKIN; ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents - Appellees.

No. 02-6000

(D.C. No. 00-CV-1775-R)

(W. District of Oklahoma)

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

Before TACHA, Chief Judge, EBEL,

and LUCERO, Circuit Judges.

Pro se petitioner Jessie Ray Laws, an Oklahoma state prisoner, seeks a

certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) to challenge

the district court's dismissal of his petition for a writ of habeas corpus as

procedurally barred. We deny the application for a COA and dismiss.

Laws is imprisoned pursuant to various state drug convictions. These

convictions were affirmed on direct appeal by the Oklahoma Court of Criminal

Appeals ("OCCA"). Laws filed an application for post-conviction collateral

relief, which the state district court denied on June 13, 2000. The OCCA

determined that his appeal from that denial, which was filed July 17, 2000, was

untimely under Rule 5.2(C)(2) of the Rules of the Court of Criminal Appeals,

which states:

A petition in error and supporting brief, WITH A CERTIFIED

COPY OF THE ORDER ATTACHED must be filed with the Clerk

of this Court. If the post conviction appeal arises from a

misdemeanor or regular felony conviction, the required documents

must be filed within thirty (30) days from the date the final order of

the District Court is filed with the Clerk of the District Court.

Okla. Stat. Ann. tit. 22, ch. 18, App. R. 5.2(C)(2). The OCCA therefore declined

jurisdiction over the appeal.

In his federal application for a writ of habeas corpus, Laws contends that

he received ineffective assistance of trial and appellate counsel in contravention

of the Sixth Amendment.(1) The district

court held that these claims, which were

raised in Laws's post-conviction application, were procedurally defaulted. As we

have stated, federal courts on habeas review "do[] not address issues that have

been defaulted in state court on an independent and adequate state procedural

ground, unless the petitioner can demonstrate cause and prejudice or a

fundamental miscarriage of justice." English v. Cody, 146 F.3d 1257, 1259 (10th

Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722 , 749­50 (1991)).

In Johnson v. Champion, 288 F.3d 1215, 1227 n.3 (10th Cir. 2002), we held

that the OCCA's declination of jurisdiction based on Rule 5.2(C)(2) constitutes an

independent and adequate state procedural ground. For substantially the same

reasons articulated by the district court, we conclude that Law fails to

demonstrate either cause and prejudice or a fundamental miscarriage of justice to

overcome his procedural default.

Accordingly, upon our examination of the record, we DENY the

application for a COA and DISMISS this matter. We

GRANT Laws's motion to

proceed in forma pauperis.(2)

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

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

*. The case is unanimously ordered submitted

without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.

1. Laws also alleged before the district court

that he was denied due

process and equal protection during his state post-conviction proceedings and

that he was unlawfully convicted without having had a preliminary hearing.

Although the district court denied Laws's habeas application in toto, in his

application for a COA Laws challenges only the dismissal of his

ineffective-assistance-of-counsel claims.

2. On July 15, 2002, Laws filed a "Verified

Application for Leave to

Amend Opening Brief." We deny this application. The proposed amendments to

Laws's opening brief would not warrant a different disposition of this matter.

Most importantly, his claim under Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) (holding that any fact other than a prior conviction which increases the

prescribed statutory maximum penalty must be submitted to a jury and proved

beyond a reasonable doubt), would fail even if we considered it at this juncture

because, contrary to Laws's characterization, Apprendi does not require the

prosecution to come forward with "conclusive evidence . . . that [he] is guilty of

any offense . . . ." (Applic. Leave Amend Opening Br. at 8 (emphasis

added).)

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