Ott v. Kaiser, (10th Cir. 2001)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN ANDREW OTT,

Petitioner-Appellant,

No. 01-6100

v.

(W. D. Oklahoma)

STEPHEN W. KAISER,

Respondent-Appellee.

(D.C. No. 00-CV-375-T)

ORDER AND JUDGMENT
name="txt*">(*)

Before HENRY, BRISCOE

and MURPHY, 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.

Kevin Andrew Ott, a state prisoner proceeding pro se, seeks to appeal the

district court's order dismissing his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254. In order to receive a certificate of appealability,

Mr. Ott must make "a substantial showing of the denial of a constitutional right."

28 U.S.C. 2253(c)(2). He may make this showing by demonstrating that the

issues that he raises are debatable among jurists, that a court could resolve the

issues differently, or that the questions presented deserve further proceedings.

See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

Mr. Ott was convicted of the following offenses in the District Court of

Cleveland County, Oklahoma: (1) trafficking in illegal drugs, a violation of Okla.

Stat. tit. 63, § 2-415; (2) maintaining a dwelling house to keep or sell a controlled

drug, a violation of Okla. Stat. tit. 63, § 2-404(A)(6); (3) possessing a firearm in

the commission of a felony, a violation of Okla. Stat. tit. 21, § 1287; (4) failure to

display a tax stamp, a violation of Okla. Stat. tit. 68, § 450.8; and (5) unlawful

possession of paraphernalia, a violation of Okla. Stat. tit. 63, § 2-405(B). The

Cleveland County District Court imposed the following sentences with respect to

each offense: (1) a fine of $ 175,000 and life imprisonment without the

possibility of parole; (2) a fine of $10,000 and five years' imprisonment; (3)

twenty years' imprisonment; (4) a fine of $10,000 and twenty years'

imprisonment; and (5) a fine of $1,000 and one year's imprisonment. Mr. Ott

appealed, and the Oklahoma Court of Criminal Appeals affirmed his conviction.

See Ott v. State, 967 P.2d 472 (Okla. Crim. App. 1998).

Mr. Ott now challenges his conviction and sentence on the following

grounds: (1) that his sentence of life without parole is excessive, in violation of

the Eighth Amendment; (2) that the trial court violated his due process rights by

failing to instruct on a lesser included offense of the trafficking count; (3) that the

trial court erred in denying to suppress on Fourth Amendment grounds evidence

obtained through a warrantless search of a mobile home owned by his mother; (4)

that there was insufficient evidence to support the firearm conviction; (5) that

there was insufficient evidence to support the conviction for maintaining a

dwelling house to keep or sell a controlled drug; (6) that the trial court erred in

relying on two Arkansas convictions to enhance his sentence because they did not

involve separate and distinct transactions; (7) that the trial court erred in relying

on the Arkansas convictions because the prosecution failed to introduce certified

copies of them; and (8) that the trial court erred in allowing the prosecution to

amend the information prior to the sentencing stage of the trial.

In a report and recommendation, a magistrate judge recommended that Mr.

Ott's petition be denied. See Rec. doc. 28 (report and recommendation, filed Dec.

22, 2000). Mr. Ott objected to the report and recommendation, but the district

court overruled Mr. Ott's objections and denied his petition. See id. doc. 32

(district court order, filed Feb 16, 2001).

In his appellate brief, Mr. Ott repeats arguments that have been fully

considered and properly analyzed by the magistrate judge and the district court.

Upon review of the record and the applicable law, we therefore DENY Mr. Ott's

application for a certificate of appealability and DISMISS this appeal for

substantially the same reasons set forth by the magistrate judge and the district

court.

Entered for the Court,

Robert H. Henry

Circuit Judge

FOOTNOTES

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

*. 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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