Shaffer v. Boone ( 2001 )

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Patrick J. Fisher, Jr.
Clerk
January 31, 2001
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 00-5155, Shaffer v. Boone
Filed on January 10, 2001
On page three, last paragraph on the page, the decision states that a copy of
the district court’s June 21, 2000 order would be attached. The order was omitted
in error when the decision was filed. The order and judgment is corrected to include
the June 21, 2000 order as an attachment.
A copy of the corrected order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JAN 10 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
DOUGLAS C. SHAFFER,
Petitioner-Appellant, No. 00-5155
v. N.D. Okla.
BOBBY BOONE, Warden, (D.C. No. 96-CV-1141-K)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **
Douglas Shaffer, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) after the district court dismissed his 28 U.S.C. § 2254habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that a COA is a
necessary predicate to any appeal from a final order in a § 2254 proceeding).
*
This order and judgment is not binding precedent, except under the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.
**
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.
Because Mr. Shaffer has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal.
Mr. Shaffer was convicted of second-degree felony murder after prior
conviction of two or more felonies. He was sentenced to sixty years’
imprisonment. In his habeas petition, together with his amended petitions, Mr.
Shaffer raised eleven grounds of error: (1) ineffective assistance of trial counsel;
(2) violation of the Sixth Amendment’s confrontation clause through the
admission of a nontestifying codefendant’s confession; (3) reversible error
resulting from the prosecutor’s comments regarding Mr. Shaffer’s Fifth
Amendment right to remain silent; (4) denial of due process through the
prosecutor’s improper closing argument; (5) ineffective assistance of appellate
counsel; (6) violation of the Fifth Amendment through the trial court’s
instructions; (7) failure of the information to state all the essential elements of the
underlying crime; (8) erroneous sentence enhancement; (9) the state court’s lack
of subject matter jurisdiction; (10) actual innocence of past convictions
considered at sentencing; and (11) violation of due process through extension of
leniency to Mr. Shaffer’s codefendant in exchange for her testimony against him.
The district court denied the first four claims on the merits; dismissed claims five,
six, eight, ten, and eleven as procedurally barred absent prejudice or fundamental
-2-
miscarriage of justice; and denied claims seven and nine as not cognizable in
federal habeas. This appeal followed.
We construe Mr. Shaffer’s allegations liberally, pursuant to Haines v.
Kerner , 404 U.S. 519, 520-21 (1972). After a careful review of the record and the
applicable case law, we conclude that Mr. Shaffer fails to make a substantial
showing of the denial of a constitutional right as required under 28 U.S.C. §
2253(c)(2) for a COA. Specifically, Mr. Shaffer fails to demonstrate “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000). Because
we agree with the district court’s well-reasoned assessment of the issues
presented on appeal, we decline to duplicate the same analysis here.
Accordingly, for substantially the same reasons set forth in the district
court’s June 21, 2000, Order, a copy of which is attached, we DENY Mr.
Shaffer’s motion for a COA and DISMISS his appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
-3-
Attachment not available electronically.