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Jones v. Hargett, 10th Cir. (2000)
Jones v. Hargett, 10th Cir. (2000)
Jones v. Hargett, 10th Cir. (2000)
TENTH CIRCUIT
JUN 16 2000
PATRICK FISHER
Clerk
No. 00-5008
STEVE HARGETT,
Respondent-Appellee.
This order and judgment is not binding precedent, except under the doctrines of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); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
**
on direct appeal and the state courts adjudication did not result in a decision that was
clearly contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States. 28 U.S.C. 2254(d)(1);
see Williams v. Taylor, 120 S. Ct. 1495, 1516 (2000). Similarly, the district court denied
claims (1) and (8), which Petitioner raised in his state post-conviction proceeding.
The district court denied the claims (2)(5) and (7), which Petitioner could have
but failed to raise on direct appeal, as procedurally barred on an independent and
adequate state ground. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). The
record shows different counsel represented Petitioner at the preliminary hearings, at trial,
and on appeal. Further, the claims may fairly be resolved on the record without additional
fact finding. See id. at 1264. The district court concluded Petitioner failed to establish
cause and prejudice or a fundamental miscarriage of justice to overcome the procedural
bar. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
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 have thoroughly reviewed Petitioners application for a certificate of
appealability, his brief, and the district courts order, and the entire record before us. We
conclude that Petitioner has failed to make a showing of the denial of a constitutional
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right substantially for the reasons set forth in the district courts order. Accordingly, we
deny his request for a certificate of appealability and dismiss the appeal.
MOTION DENIED; APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge