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  • Weatherly v. State of Oklahoma, 149 F.3d 1192, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit denied Harold Gene Weatherly's request for a certificate of appealability to appeal the district court's denial of habeas corpus relief. The district court had denied Weatherly's habeas petition and his request for a certificate of appealability. Weatherly argued that the Oklahoma Court of Criminal Appeals improperly imposed a procedural bar to the substantive claims in his habeas petition. However, the Tenth Circuit concluded that Weatherly failed to make a substantial showing of a denial of a constitutional right and denied his request for a certificate of appealability, dismissing his appeal.

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    Filed: 1998-06-09 Precedential Status: Non-Precedential Citations: 149 F.3d 1192 Docket: 97-6160

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    The United States Court of Appeals for the Tenth Circuit denied Harold Gene Weatherly's request for a certificate of appealability to appeal the district court's denial of habeas corpus relief. The district court had denied Weatherly's habeas petition and his request for a certificate of appealability. Weatherly argued that the Oklahoma Court of Criminal Appeals improperly imposed a procedural bar to the substantive claims in his habeas petition. However, the Tenth Circuit concluded that Weatherly failed to make a substantial showing of a denial of a constitutional right and denied his request for a certificate of appealability, dismissing his appeal.

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    Weatherly v. State of Oklahoma, 149 F.3d 1192, 10th Cir. (1998)

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    The United States Court of Appeals for the Tenth Circuit denied Harold Gene Weatherly's request for a certificate of appealability to appeal the district court's denial of habeas corpus relief. The district court had denied Weatherly's habeas petition and his request for a certificate of appealability. Weatherly argued that the Oklahoma Court of Criminal Appeals improperly imposed a procedural bar to the substantive claims in his habeas petition. However, the Tenth Circuit concluded that Weatherly failed to make a substantial showing of a denial of a constitutional right and denied his request for a certificate of appealability, dismissing his appeal.

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    of 3

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 9 1998

    PATRICK FISHER
    Clerk

    HAROLD GENE WEATHERLY,


    Petitioner-Appellant,
    v.
    STATE OF OKLAHOMA;
    JACK COWLEY,

    No. 97-6160
    (D.C. No. 96-CV-1848)
    (W.D. Okla.)

    Respondents-Appellees.

    ORDER AND JUDGMENT

    Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

    After examining petitioners brief and the appellate record, this panel has
    determined unanimously to grant petitioners request for a decision without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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.

    Petitioner appeals from the district courts denial of habeas corpus relief.
    See 28 U.S.C. 2254. The district court also denied petitioners request for a
    certificate of appealability.

    See id. 2253(c)(1). Before petitioner may proceed

    on appeal, he must secure a certificate of appealability from this court.

    See id.

    Petitioner argues that this court should grant a certificate of appealability on the
    following grounds: (1) the Oklahoma Court of Criminal Appeals improperly
    imposed a procedural bar to the substantive claims raised; and (2) if the
    substantive claims were procedurally defaulted, the default should be excused
    because there was cause for the default and actual prejudice, or a failure to
    consider his claims will result in a fundamental miscarriage of justice.
    Upon consideration of the record and petitioners brief, we conclude
    petitioner has failed to make a substantial showing of a denial of a constitutional
    right. See id. 2253(c)(2). We DENY petitioners request for a certificate of
    appealability for substantially the reasons stated by the magistrate judge in his
    findings and recommendation filed December 26, 1996, and supplemental
    findings and recommendation filed March 6, 1997, which were adopted by the

    -2-

    district court on April 14, 1997. The appeal is DISMISSED. Petitioners motion
    to proceed on the record is GRANTED.
    Entered for the Court

    Michael R. Murphy
    Circuit Judge

    -3-

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