Lee v. Scott, (10th Cir. 2001)

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UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GLENN WAYNE LEE,

Petitioner-Appellant,

v.

H. N. SCOTT, sued as H. N. "Sonny"Scott,

Respondent-Appellee.No. 00-5228

(D.C. No. 98-CV-127-BU)

(N.D. Okla.)

ORDER AND JUDGMENT(*)

Before SEYMOUR and McKAY, Circuit Judges, andBRORBY, Senior CircuitJudge.

After examining the petitioner's brief and the appellate record, this panelhas determined unanimously that oral argument would not materially assist thedetermination 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.

Petitioner Glenn Wayne Lee, an Oklahoma state prisoner proceeding pro se,was convicted by a jury of unlawful possession of a controlled drug with intent todistribute after former conviction of a felony and unlawful possession ofparaphernalia. He seeks a certificate of appealability (COA) to challenge thedistrict court's order denying his petition for a writ of habeas corpus filedpursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). He has alsorequested leave to proceed on appeal without prepayment of fees. That request isgranted. Upon consideration of the issues raised, we deny issuance of a COA anddismiss the appeal.

Petitioner's federal habeas petition challenged the state appellate court'sholding that his successive post-conviction petition was procedurally barred. Hisfirst application for post-conviction relief filed in the state court was granted inpart and denied in part. The state appellate court affirmed. Petitioner attemptedto amend his post-conviction petition, which the state trial court denied on themerits, but which the state appellate court treated as a successive petition anddismissed as procedurally barred.

Petitioner then filed his federal habeas petition claiming the State'spost-conviction corrective process was inadequate to address the merits of hisclaims and the state courts' dismissal of his successive post-conviction petitionviolated his rights to due process and equal protection. Even though petitionerhad not presented these claims to the state courts, the district court held that theexhaustion requirement of § 2254(b) was met because requiring petitioner to fileanother successive state-court application for post-conviction relief would befutile. The district court denied habeas relief, holding that petitioner's claimswere not cognizable in a federal habeas proceeding. Petitioner appeals,reasserting his challenge to the State's post-conviction procedures.

This case is governed by the Antiterrorism and Effective Death Penalty Act(AEDPA). Before a COA will issue, petitioner must make "a substantial showingof the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To do so, hemust demonstrate "that reasonable jurists could debate whether (or, for thatmatter, agree that) the petition should have been resolved in a different manner orthat the issues presented were adequate to deserve encouragement to proceedfurther." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

We have carefully reviewed petitioner's brief and the appellate record. Forsubstantially the same reasons underlying the district court's November 3, 2000order denying habeas relief, we conclude that petitioner has failed to make therequired showing to obtain a COA under § 2253(c)(2).

The motion for leave to proceed in forma pauperis is GRANTED. Theapplication for issuance of a COA is DENIED. The appeal is DISMISSED. Themandate shall issue forthwith.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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