Cooksey v. Champion, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JUN 7 1999
PATRICK FISHER
Clerk
HAROLD DEAN COOKSEY,

Petitioner-Appellant,
v.
RON CHAMPION, Warden; L. L.
YOUNG,
No. 99-5008
(N. District of Oklahoma)
(D.C. No. 95-CV-1141-E)
Respondents-Appellees.
ORDER AND JUDGMENT *

Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
This order and judgment is not binding precedent, except under the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.
*
This case is before the court on pro se petitioner Harold D. Cookseys

application for a certificate of probable cause (CPC). Cooksey seeks a CPC so
that he can appeal the district courts denial of his 28 U.S.C. 2254 petition. See
28 U.S.C. 2253 (1994). 1 Because Cooksey has not made a substantial showing
of the denial of a federal right, this court denies Cookseys request for a CPC and
dismisses this appeal.
The district court meticulously set out the complicated procedural history
surrounding this case. This court will not repeat that task. Instead, for purposes
of this appeal, it is sufficient to note that Cooksey was convicted 1993 in
Oklahoma state court of one count of Larceny of Merchandise from a Retailer,
After the Former Conviction of Two or More Felonies, and one count of Incurring
Bail Forfeiture, After the Former Conviction of Two or More Felonies. In federal
district court, Cooksey raised the following five challenges to the validity of his
Cooksey filed his original 2254 petition on May 10, 1995, well before
the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Thus, the AEDPAs revised standards of review and certificate-ofappealability requirements do not apply. See Lindh v. Murphy, 521 U.S. 320
(1997); United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997).
Nevertheless, Cooksey must still obtain a CPC under pre-AEDPA law in order to
appeal the district courts denial of his 2254 habeas petition. See 28 U.S.C.
2253 (1994) (An appeal may not be taken to the court of appeals from the final
order in a habeas corpus proceeding where the detention complained of arises out
of process issued by a State court, unless the justice or judge who rendered the
order or a circuit justice or judge issues a certificate of probable cause.).
1
-2-
larceny and bail forfeiture convictions: (1) his convictions were improperly
enhanced by a constitutionally invalid Texas felony conviction; (2) the state trial
court erred in allowing the state to introduce prior misdemeanor convictions in the
larceny case and in failing to give the jury a limiting instruction on the use of the
misdemeanors; (3) the state failed to put Cooksey on notice that it was relying on
misdemeanor convictions to revitalize otherwise stale felony convictions; (4)
the state trial court erred when it allowed the state to present evidence concerning
a dismissed charge that was part of the same transaction as one of the predicate
felonies; and (5) the evidence was insufficient to support the conviction for
incurring bail forfeiture.
In two thorough orders, the district court denied relief. As to Cookseys
claim regarding the validity of his Texas felony, which felony was apparently
used to enhance both his larceny and bail forfeiture convictions, the district court
concluded that it was procedurally barred from addressing the merits of the claim
because Cooksey had failed to raise it on direct appeal to the Oklahoma Court of
Criminal Appeals (OCCA). After further briefing, the district court further
concluded that Cooksey had failed to demonstrate that his failure to raise the
claim was excused by cause and prejudice or that review of the claim on the
merits was necessary to prevent a fundamental miscarriage of justice. With
regard to Cookseys second and fourth claims, the district court noted that
-3-
Cookseys challenges centered exclusively on whether the OCCA had

misinterpreted state law in affirming Cookseys conviction. As noted by the
district court, 2254 does not empower federal courts to review a state courts
interpretation or application of its own laws. See Lujan v. Tansy, 1031, 1036 (10 th
Cir. 1993). The district court rejected Cookseys third claim, whether Cooksey
had sufficient notice that the state intended to use his misdemeanors to revive
stale felony convictions, as not supported by the record. According to the district
court, it was readily apparent from the charging documents that the state would
present intervening misdemeanors to revive the stale felonies. Finally, the district
court rejected Cookseys fifth claim, concluding that the record contained more
than sufficient evidence from which a rational juror could conclude that Cooksey
had willfully failed to appear at his preliminary hearing.
This court has undertaken a thorough review of Cookseys application for a
CPC and appellate brief, the district court orders denying relief, and the entire
record on appeal. That close review demonstrates that the district courts
resolution of Cookseys claims is not reasonably debatable, subject to a different
resolution on appeal, or deserving of further proceedings. Barefoot v. Estelle,
463 U.S. 880, 883 n.4 (1983). Accordingly, Cooksey is not entitled to a CPC. Id.
Cookseys request for a CPC is hereby DENIED for substantially those reasons
-4-
set out in the district courts orders dated December 5, 1997 and December 15,
1998. Cookseys appeal is therefore DISMISSED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
-5-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

HAROLD DEAN COOKSEY,

ORDER AND JUDGMENT *

This case is before the court on pro se petitioner Harold D. Cookseys

Cookseys challenges centered exclusively on whether the OCCA had

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