Lyons v. Sirmons, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

BEN EZRA LYONS,

Petitioner-Appellant,

v.

MARTY SIRMONS, Warden, Dick

Conner Correctional Center;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 04-6369

(W.D. Oklahoma)

(D.Ct. No. CV-04-632-C)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before KELLY, O'BRIEN, and TYMKOVICH,

Circuit Judges.

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.

Ben Ezra Lyons, proceeding pro se, moves for a Certificate of

Appealability ("COA") pursuant to 28 U.S.C. 2253(c) in order to challenge the

district court's denial of his 28 U.S.C. 2254 petition for habeas relief.(*)

On June 30, 2003, Lyons pled guilty to robbery with a dangerous weapon

and was sentenced to fifteen years imprisonment. He did not appeal his

conviction. Instead, in a motion for post-conviction relief filed in Oklahoma

district court, he alleged his attorney failed to advise him he had a meritorious

appeal based on an allegedly disparate sentence from that imposed on his co-defendant.(2) His petition claiming ineffective assistance of

counsel was denied on

March 31, 2004. The Oklahoma Criminal Court of Appeals affirmed the denial

of his petition for post-conviction relief on May 10, 2004.

Lyons filed a Petition for a Writ of Habeas Corpus in the District Court for

the Western District of Oklahoma on May 20, 2004. In his federal § 2254

petition, Lyons raises the same allegations contained in his petition for post-conviction relief.

The matter was referred to a magistrate judge who issued a

thorough report and a recommendation to deny Lyons' petition. The magistrate

reasoned, inter alia, that Lyons received the precise period of imprisonment

negotiated in exchange for his guilty plea. He also noted the government

dismissed a second count for being a felon in possession of a firearm; a crime

which carried a range of one to ten years imprisonment. His co-defendant was

not charged with a second violation. Therefore, Lyons failed to show either his

counsel's performance was deficient or a reasonable probability that, even had he

appealed, a different outcome would have resulted. Strickland v. Washington,

466 U.S. 668, 688 (1984). The district court adopted the magistrate's report and

recommendation in its entirety and denied Lyons' petition on September 17,

2004. Lyons then requested a certificate of appealability (COA) pursuant to

28 U.S.C. 2253(c)(requiring a state petitioner to acquire a COA as a condition

to appeal) and permission to proceed in forma pauperis (ifp) pursuant to

28 U.S.C. 1915(b). The district court denied both requests. We now consider his

renewed request for a COA and to proceed ifp.

"A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right." 28 U.S.C. §

2253(c)(2). "Where a district court has rejected the constitutional claims on the

merits," the prisoner "must demonstrate that reasonable jurists would find the

district court's assessment of the constitutional claims debatable or wrong."

Slack v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in determining

whether to issue a COA, a "full consideration of the factual or legal bases

adduced in support of the claims" is not required. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). Instead, the decision must be based on "an overview of the

claims in the habeas petition and a general assessment of their merits." Id.

We conclude that Lyons' ineffective assistance of counsel claim must fail

for the same reasons set forth by the magistrate judge and adopted by the district

court. No reasonable jurist would debate whether his § 2254 petition should

have been granted. With regard to Lyons' request to proceed ifp, we conclude

the district court correctly determined that Lyons failed to show the existence of

a reasoned, nonfrivolous argument on the law and facts in support of the issues

he raises on appeal. Accordingly, we DENY his petition for a COA and his

motion for leave to file in forma pauperis and DISMISS his

appeal. Lyons shall

remit the full amount of the filing fee within twenty (20) days of this order.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge

FOOTNOTES

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

*. This appeal was partially remanded to the

district court for a ruling on Lyons'

timely motion for an extension of time in which to file his notice of appeal under Fed. R.

App. 4(a)(5). In an order dated December 16, 2004, the district court granted Lyons'

motion for an extension of time.

2. Lyons' co-defendant was sentenced to twelve

years imprisonment with seven

years suspended sentence.

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