Ashworth v. Addison , 132 F. App'x 752 ( 2005 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 19 2005
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    BRIAN ASHWORTH,
    Petitioner-Appellant,
    No. 04-6364
    v.                                             (Western District of Oklahoma)
    (D.C. No. CV-04-147-L)
    MIKE ADDISON, Warden,
    Respondent-Appellee.
    ORDER
    Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
    Proceeding pro se, Brian Ashworth seeks a certificate of appealability
    (“COA”) so he can appeal the district court’s denial of the habeas petition he filed
    pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
    appeal may be taken from a final order disposing of a § 2254 petition unless the
    petitioner first obtains a COA). Ashworth’s motion to proceed in forma pauperis
    is granted.
    On January 10, 2003, Ashworth pleaded guilty to one count of lewd
    molestation. Pursuant to the terms of a plea agreement, a second charge of lewd
    molestation was dismissed. He was sentenced to a thirteen-year term of
    imprisonment. Ashworth did not seek to withdraw his guilty plea and he did not
    file a direct appeal. He did, however, file a state post-conviction application on
    November 3, 2003. Ashworth asserted several ineffective assistance of counsel
    claims in addition to a claim that the trial court lacked jurisdiction to accept his
    plea because it did not hold a preliminary hearing after a charge was added to the
    information. The state district court denied Ashworth’s post-conviction
    application, relying on Oklahoma’s procedural default rule. See Okla Stat. tit. 22,
    § 1086. The denial of post-conviction relief was affirmed by the Oklahoma
    Court of Criminal Appeals.
    Ashworth filed the instant § 2254 petition on February 12, 2004, raising the
    same ineffective assistance and jurisdictional claims raised in his state post-
    conviction application. The matter was referred to a magistrate judge who
    prepared a Report and Recommendation (“R&R”) recommending that Ashworth’s
    petition be denied. The R&R first addressed Ashworth’s assertion that a
    jurisdictional claim cannot be subject to procedural default. It concluded,
    however, that the right to a preliminary hearing on an amended information can
    be waived by the failure to object. See Norton v. State, 
    43 P.3d 404
    , 408 (Okla.
    Crim. App. 2002). Thus, despite Ashworth’s assertions, his claim did not
    implicate the trial court’s jurisdiction and it was procedurally defaulted. The
    R&R further concluded that Ashworth had failed to show cause and prejudice to
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    excuse the default and had also failed to demonstrate that the failure to review the
    merits of the defaulted claim would result in a fundamental miscarriage of justice.
    See Bousley v. United States, 
    523 U.S. 614
    , 622 (1998). The R&R then concluded
    that federal review of Ashworth’s ineffective assistance claims was not barred by
    the procedural default. Although it reviewed the claims, it determined that they
    lacked merit.
    Ashworth filed timely objections to the R&R and argued, in part, that he
    was not given an adequate opportunity to argue the merits of his ineffective
    assistance claims. The district court considered Ashworth’s expanded arguments
    but concluded that the ineffective assistance claims lacked merit. Accordingly,
    the court denied Ashworth’s § 2254 petition.
    This court cannot grant Ashworth a COA unless he can demonstrate “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.
    McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted). In evaluating whether
    Ashworth has carried his burden, this court undertakes “a preliminary, though not
    definitive, consideration of the [legal] framework” applicable to each of his
    claims. Miller-El v. Cockrell, 
    537 U.S. 322
    , 338 (2003). Ashworth is not
    required to demonstrate that his appeal will succeed to be entitled to a COA. He
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    must, however, “prove something more than the absence of frivolity or the
    existence of mere good faith.” 
    Id. (quotations omitted).
    This court has reviewed Ashworth’s application for a COA and appellate
    brief, the district court’s order, and the entire record on appeal pursuant to the
    framework set out by the Supreme Court in Miller-El and concludes that
    Ashworth is not entitled to a COA. The district court’s resolution of Ashworth’s
    claims is not reasonably subject to debate and the claims are not adequate to
    deserve further proceedings. Accordingly, Ashworth has not “made a substantial
    showing of the denial of a constitutional right” and is not entitled to a COA. 28
    U.S.C. § 2253(c)(2).
    This court denies Ashworth’s request for a COA and dismisses this appeal.
    Entered for the Court
    PATRICK FISHER, Clerk of Court
    By
    Deputy Clerk
    -4-
    

Document Info

Docket Number: 04-6364

Citation Numbers: 132 F. App'x 752

Judges: Briscoe, Lucero, Murphy

Filed Date: 5/19/2005

Precedential Status: Precedential

Modified Date: 8/3/2023