Crain v. Scott ( 2000 )


Menu:
  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 5 2000
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MARCUS DEJUAN CRAIN,
    Petitioner-Appellant,
    v.                                                          No. 99-6228
    H.N. SCOTT; ATTORNEY GENERAL                           (D.C. No. 97-CV-413)
    OF THE STATE OF OKLAHOMA,                                  (W.D. Okla)
    Respondent-Appellee.
    ORDER AND JUDGMENT*
    Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
    In June 1994, Petitioner Marcus Dejuan Crain pled guilty in Oklahoma state court
    to conspiracy to commit a felony, concealing stolen property, and twelve counts of first
    degree robbery, after former conviction of two or more felonies. The trial court sentenced
    Petitioner to 30 years imprisonment on each of the first degree robbery convictions and 25
    *
    This order and judgment is not binding precedent, except under the doctrines of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, this panel has determined
    unanimously that oral argument would not materially assist in 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.
    years imprisonment on each of the remaining counts, with all sentences to be served
    concurrently, but consecutive to sentences Petitioner received in other cases for three
    counts of concealing stolen property and three counts of making a false declaration to a
    pawnbroker, all after former conviction of a felony. Petitioner did not move to withdraw
    his guilty pleas and did not perfect a direct criminal appeal. Instead, he unsuccessfully
    sought post-conviction relief in state court. Thereafter, Petitioner filed a petition for a
    writ of habeas corpus under 
    28 U.S.C. § 2254
     in federal district court raising five claims:
    (1) insufficient evidence supported his conviction for first degree robbery; (2) insufficient
    evidence supported his conviction for conspiracy to commit a felony; (3) the trial court
    erred by failing to require full disclosure of the plea agreement and by misadvising him
    about the consequences of such plea agreements; (4) the trial court erred by failing to
    establish a factual basis for the guilty pleas entered on the robbery charges; and (5) trial
    counsel was ineffective for allowing Petitioner to enter guilty pleas to charges he “knew
    nothing about” and “did not commit,” and for failing to file a pretrial motion to quash the
    information.
    In a thorough report and recommendation, a magistrate judge recommended denial
    of the petition. The magistrate judge concluded that Petitioner’s first four claims were
    procedurally barred and that Petitioner failed to demonstrate cause and prejudice or a
    fundamental miscarriage of justice. See Coleman v. Thompson, 
    501 U.S. 722
    , 750
    (1991) (“In all cases in which a state prisoner has defaulted his federal claims in state
    2
    court pursuant to an independent and adequate state procedural rule, federal habeas
    review of the claims is barred unless the prisoner can demonstrate cause for the default
    and actual prejudice as a result of the alleged violation of federal law, or demonstrate that
    failure to consider the claims will result in a fundamental miscarriage of justice.”). The
    magistrate judge further concluded that Petitioner’s ineffective assistance of counsel
    claim lacked merit. The district court subsequently adopted the report and
    recommendation and denied Petitioner a certificate of appealability. See 
    28 U.S.C. § 2253
    (c). His renewed application is before us.
    A petitioner may appeal the denial of a § 2254 petition only if “a circuit justice or
    judge” issues a certificate of appealability. 
    28 U.S.C. § 2253
    (c)(1)(A). A certificate of
    appealability “may issue . . . only if the applicant has made a substantial showing of the
    denial of a constitutional right.” 
    Id.
     at § 2253(c)(2). We conclude that Petitioner has
    failed to make the required showing.
    We have thoroughly reviewed Petitioner’s application for a certificate of
    appealability, his brief, the magistrate judge’s report and recommendation, the district
    court’s order adopting that report and recommendation, and the entire record before us.
    We conclude that Petitioner has failed to make a substantial showing of the denial of a
    constitutional right substantially for the reasons set forth in the magistrate judge’s report
    and recommendation. Accordingly, we deny his request for a certificate of appealability
    and dismiss the appeal.
    3
    CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.
    Entered for the Court,
    Bobby R. Baldock
    Circuit Judge
    4
    

Document Info

Docket Number: 99-6228

Filed Date: 1/5/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021