Bailey v. Booher ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 23 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILLY JOE BAILEY,
Petitioner-Appellant,
v. No. 99-6415
GLYNN BOOHER, Warden, (D.C. No. CIV-99-1461-L)
(W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY, and LUCERO, Circuit Judges. **
Petitioner Billy Joe Bailey, proceeding pro se, appeals the district court’s
denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The
district court denied Petitioner’s motion to proceed in forma pauperis on appeal,
see 28 U.S.C. § 1915(a)(1), and denied his application for a certificate of
*
This order and judgment is not binding precedent, except under the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, the panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
appealability, see 28 U.S.C. § 2253(c)(2). We deny Petitioner’s application for a
certificate of appealability and dismiss Petitioner’s appeal.
Petitioner pled nolo contendere to several drug-related charges on June 20,
1997 and was sentenced to 25 years imprisonment. On June 11, 1999, Petitioner
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming
ineffective assistance of counsel and improper sentencing enhancement. The
magistrate judge issued a thorough report and recommendation denying the
petition as untimely because of the one-year statute of limitations in 28 U.S.C.
§ 2244(d). The district court adopted the magistrate judge’s report and
recommendation and summarily dismissed the petition. The district court
subsequently denied Petitioner’s application for a certificate of appealability.
We have thoroughly reviewed the record on appeal, Petitioner’s brief, the
magistrate judge’s report and recommendation, and the district court’s order. We
deny Petitioner’s application for a certificate of appealability for substantially the
reasons set forth in the magistrate judge’s report and recommendation.
CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
-2-