Pratt v. Sirmons , 216 F. App'x 742 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
February 8, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
W ILLIAM RA Y PRA TT,
Petitioner - A ppellant,
No. 06-6351
v.
(D.C. No. CIV-04-1070-F)
(W .D. Okla.)
M ARTY SIRM ONS,
Respondent - Appellee.
OR DER
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
Petitioner-A ppellant W illiam Ray Pratt seeks a certificate of appealability
(“COA”), see 28 U.S.C. § 2253(c), that would permit him to appeal the district
court’s denial of his habeas petition asserted under 28 U.S.C. § 2254. 1 Through
his habeas petition, Pratt challenged his five O klahoma convictions for first
degree rape by instrumentation and one conviction for child sexual abuse, all
comm itted after former conviction of a felony, as well as the forty-five-year
sentences imposed for each conviction to run consecutively. In this § 2254
proceeding, Pratt asserts a number of grounds for relief, arguing: the trial court
1
The district court granted Pratt’s motion to proceed on appeal in forma
pauperis. See 28 U.S.C. § 1915(a).
erred in admitting, and defense counsel was ineffective for failing to object to,
evidence of other crimes involving Pratt’s sexually abusing two other girls several
years earlier; the cumulative effect of several improper prosecutorial comments
and other trial errors deprived Pratt of a fundamentally fair trial; his trial attorney
was ineffective for failing to file a speedy trial motion, failing to assist Pratt in
his defense, failing to obtain full discovery from the State, failing to assist Pratt
with motions he was filing pro se, failing to request that Pratt’s sentences run
concurrently, and failing to investigate and present additional evidence in Pratt’s
defense; and the trial court abused its discretion in denying Pratt the opportunity
to make a record before the jury of the witnesses and evidence Pratt wanted
defense counsel to present in his defense.
Pratt will be entitled to a COA if he can make“a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Pratt can make such a
showing by establishing 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. M cDaniel, 529 U.S. 473, 483-84 (2000) (quotations omitted).
However, for substantially the reasons stated in the magistrate judge’s report and
recommendation, adopted by the district court, we conclude Pratt has failed to
make this showing. W e, therefore, DEN Y his motion for a CO A and DISM ISS
this appeal. In light of that, Pratt’s motions for abeyance and rehearing en banc
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of his request for oral argument and appointment of counsel are DENIED as moot.
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
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