Dawson v. Miller , 171 F. App'x 739 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 22, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DALLAS CHARLES DAWSON,
Petitioner-Appellant,
v. No. 05-6182
(D.C. No. CIV-03-1161-T)
DAVE MILLER, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Dallas Charles Dawson appeals the denial of his 28 U.S.C. § 2254 habeas
petition. Dawson was convicted in state court in Oklahoma of two counts of
robbery after former conviction of a felony, and one count of possession of a
firearm after former conviction of a felony. He was sentenced to thirty years for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
each count of robbery and ten years for the possession of firearm count.
Dawson’s convictions and sentences were affirmed on appeal by the Oklahoma
Court of Criminal Appeals (OCCA). Dawson sought state post-conviction relief,
which was denied at all levels.
Dawson then filed his federal habeas petition. The magistrate judge
conducted an evidentiary hearing and then filed a report recommending that
habeas relief be denied. After considering Dawson’s objections to the report, the
district court entered judgment denying relief. The district court then granted
Dawson a certificate of appealability on Dawson’s double jeopardy claims,
ineffective assistance of trial counsel claim, and the district court’s application
of the firm waiver rule to the remaining claims raised in the petition. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a) and we affirm.
When a state court has considered a claim on the merits, this court must
affirm unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) & (2). Further, state court findings are
presumed to be correct unless the petitioner rebuts this presumption by clear and
convincing evidence. Id. § 2254(e)(1).
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When a state court has not considered a claim on the merits, “we review the
district court’s legal conclusions de novo and factual findings for clear error.”
Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir. 2004), cert. denied, 543 U.S.
1156 (2005). We review for abuse of discretion the district court’s decision to
apply the firm waiver rule. See Moothart v. Bell, 21 F.3d 1499, 1504-05
(10th Cir. 1994) (describing abuse of discretion standard); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991) (noting discretionary nature of firm
waiver rule, which “need not be applied when the interests of justice so dictate”).
On appeal, Dawson asserts that: 1) his convictions for two counts of
robbery violated the Constitution’s prohibition against double jeopardy; 2) his
convictions for robbery with a firearm after former conviction of a felony and
possession of a firearm after former conviction of a felony violated the
Constitution’s prohibition against double jeopardy; 3) trial counsel’s deficient
performance denied Dawson the effective assistance of counsel guaranteed by the
Sixth Amendment; and 4) the district court erred in applying the firm waiver rule
to Dawson’s remaining claims.
Our review of the appellate briefs, the record, and the applicable law, lead
us to conclude that, for substantially the reasons stated in the district court’s order
of April 28, 2005, Dawson is not entitled to habeas relief.
The judgment of the district court is AFFIRMED.
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Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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