Lewis v. Scott ( 1998 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 12 1998
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    GREGORY ROCSHON LEWIS,
    Petitioner - Appellant,
    v.                                                      No. 97-6380
    (D.C. No. 97-CV-341)
    H. N. “SONNY” SCOTT,                                    (W.D. Okla.)
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
    Mr. Lewis seeks to appeal from the denial of his habeas petition, 28 U.S.C.
    § 2254. Upon recommendation of the magistrate judge, the district court denied
    the petition, in forma pauperis status for an appeal, and a certificate of
    appealability. We have reviewed the record, grant Mr. Lewis’s motion for leave
    to proceed on appeal without prepayment of costs or fees, but conclude that he
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
    has not made “a substantial showing of the denial of a constitutional right,” 28
    U.S.C. § 2253(c)(2), and therefore deny his application for a certificate of
    appealability. The predicate of Mr. Lewis’s claims, ineffective assistance of
    counsel, was considered on the merits by the Oklahoma Court of Criminal
    Appeals, R. doc. 17, ex. A at 2, so the claim is not procedurally barred, see Ylst
    v. Nunnemaker, 
    501 U.S. 797
    , 801 (1991), and there is no need to consider the
    issue of procedural bar in the context of Oklahoma’s direct appeal procedure, see
    English v. Cody, Nos. 97-5004 & 97-5132, 
    1998 WL 348019
    (10th Cir. June 30,
    1998). As to the merits, we are in substantial agreement with the Supplemental
    Report and Recommendation of the magistrate judge, see R. doc. 30 at 6-17.
    APPEAL DISMISSED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -2-
    

Document Info

Docket Number: 97-6380

Filed Date: 8/12/1998

Precedential Status: Non-Precedential

Modified Date: 4/18/2021