Lee v. Scott , 15 F. App'x 768 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 13 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GLENN WAYNE LEE,
Petitioner-Appellant,
v. No. 00-5228
(D.C. No. 98-CV-127-BU)
H. N. SCOTT, sued as H. N. “Sonny” (N.D. Okla.)
Scott,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the petitioner’s brief and the 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.
*
This order and judgment is not binding precedent, except under the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.
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 to
distribute after former conviction of a felony and unlawful possession of
paraphernalia. He seeks a certificate of appealability (COA) to challenge the
district court’s order denying his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253 (c)(1)(A). He has also
requested leave to proceed on appeal without prepayment of fees. That request is
granted. Upon consideration of the issues raised, we deny issuance of a COA and
dismiss the appeal.
Petitioner’s federal habeas petition challenged the state appellate court’s
holding that his successive post-conviction petition was procedurally barred. His
first application for post-conviction relief filed in the state court was granted in
part and denied in part. The state appellate court affirmed. Petitioner attempted
to amend his post-conviction petition, which the state trial court denied on the
merits, but which the state appellate court treated as a successive petition and
dismissed as procedurally barred.
Petitioner then filed his federal habeas petition claiming the State’s
post-conviction corrective process was inadequate to address the merits of his
claims and the state courts’ dismissal of his successive post-conviction petition
violated his rights to due process and equal protection. Even though petitioner
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had not presented these claims to the state courts, the district court held that the
exhaustion requirement of § 2254(b) was met because requiring petitioner to file
another successive state-court application for post-conviction relief would be
futile. The district court denied habeas relief, holding that petitioner’s claims
were 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 showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, he
must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).
We have carefully reviewed petitioner’s brief and the appellate record. For
substantially the same reasons underlying the district court’s November 3, 2000
order denying habeas relief, we conclude that petitioner has failed to make the
required showing to obtain a COA under § 2253(c)(2).
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The motion for leave to proceed in forma pauperis is GRANTED. The
application for issuance of a COA is DENIED. The appeal is DISMISSED. The
mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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