Walters v. Kaiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 10, 1997
• Docket: 97-6138
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 10 1997 TENTH CIRCUIT PATRICK FISHER Clerk

CORTEZ DARNELL WALTERS,

Petitioner-Appellant,

v. No. 97-6138 (D.C. No. CIV-96-2092) STEVEN KAISER; STATE OF (W.D. Okla.) OKLAHOMA; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Cortez Darnell Walters, a state prisoner appearing pro se, asks

this court to grant him a certificate of appealability to appeal the district court's

order dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254. We

deny petitioner a certificate of appealability and dismiss the appeal.

This court will issue a certificate of appealability when a petitioner makes a

substantial showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). In his habeas petition, Walters argued his convictions violated the

Double Jeopardy Clause of the Fifth Amendment, and his constitutional rights

were violated when the district court permitted endorsement of a witness during

trial. 1

Double Jeopardy

Walters argues his convictions for forgery and concealing stolen property

violated the Double Jeopardy Clause because both charges arose from the same

occurrence or transaction. Double jeopardy is not violated by conviction for two

offenses arising from the same occurrence or transaction as long as each offense

requires proof of a fact that the other does not. See Blockburger v. United States,

284 U.S. 299, 304 (1932); see also Yparrea v. Dorsey, 64 F.3d 577, 579-80 (10th

Cir. 1995). The crimes of forgery and concealing stolen property require proof of

Walters apparently also seeks relief based on an allegedly defective indictment 1

or information. However, we will not address that issue because he has not exhausted his state remedies. See 28 U.S.C. § 2254(b)(1)(A).

-2- different facts. Compare Okla. Stat. tit. 21, § 1713, with Okla. Stat. tit. 21, §

1713. Therefore, Walters' convictions do not violate the Double Jeopardy Clause.

Endorsement of Witness

Walters claims his constitutional rights were violated when the trial court

endorsed a witness during the punishment stage of the proceedings. The witness

identified and authenticated Walters' previous convictions. This testimony was

necessary to enhance Walters' sentence based on his previous convictions.

Walters was well aware that the state intended to present evidence of previous

convictions as the indictment indicated the state intended to seek enhancement.

Oklahoma law permits endorsement of a witness at any time during trial. See

Okla. Stat. tit. 22, § 384. In affirming Walters' convictions on direct appeal, the

Oklahoma Court of Criminal Appeals found Walters had suffered no prejudice as

a result of the late endorsement.

We conclude Walters has failed to make a substantial showing of the denial

of a constitutional right required for the issuance of a certificate of appealability

under 28 U.S.C. 2253(c)(2). We therefore DENY him a certificate of

appealability and DISMISS the appeal. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge

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