Williams v. Kaiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 2, 1999
• Docket: 99-7011
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 2 1999 TENTH CIRCUIT PATRICK FISHER Clerk

JOE BRYANT WILLIAMS,

Petitioner - Appellant,

v. No. 99-7011 (D. Ct. No. 98-CV-37-S) STEPHEN KAISER, Warden; (E.D. Okla.) ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

Mr. Williams, pro se, appeals the district court’s order denying his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and requests a certificate

This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. This 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. of appealability. We deny his request for a certificate of appealability pursuant to

28 U.S.C. § 2253(c) and dismiss the appeal.

On February 9, 1995, a jury convicted petitioner of assault with a deadly

weapon, after former conviction of two or more felonies, in Coal County District

Court. He was sentenced to twenty years in prison. Petitioner appealed, and his

case was assigned to an emergency panel of the Oklahoma Court of Criminal

Appeals. On April 3, 1996, the emergency panel reversed petitioner’s conviction

and remanded his case for a new trial. On February 20, 1997, however, the

Oklahoma Court of Criminal Appeals reversed the decision of the emergency

panel and affirmed petitioner’s conviction and sentence.

Petitioner then filed a post-conviction appeal in the state trial court. The

state trial court denied relief on October 24, 1997, and petitioner filed a post-

conviction appeal in the Oklahoma Court of Criminal Appeals. The court of

criminal appeals denied petitioner’s request for relief on December 12, 1997.

Petitioner thereafter filed an amended petition for writ of habeas corpus on

February 6, 1998 in the United States District Court for the Eastern District of

Oklahoma. Adopting the findings and recommendation of a magistrate judge, the

district court denied petitioner’s amended request for federal habeas corpus relief.

The district court also denied petitioner’s request for a certificate of appealability.

Petitioner timely filed a notice of appeal in this court.

-2- Mr. Williams appears to argue that the Oklahoma Court of Criminal

Appeals acted arbitrarily when it reversed the decision of the emergency panel

granting him a new trial, thereby depriving him of his liberty without due process

or equal protection of the law. He further asserts that as a result of the court’s

violation of his constitutional rights, Oklahoma lost both personal and subject

matter jurisdiction over him. Consequently, petitioner contends that any judgment

or order entered by an Oklahoma court against him, including his conviction and

sentence in the state trial court, is void. We disagree.

As the magistrate judge pointed out in his findings and recommendation,

the Oklahoma Court of Criminal Appeals has the power to assign certain cases to

an emergency panel and to review the decision of an emergency panel upon the

filing of a petition for review. Okla Stat. Ann. tit. 20, § 60.1-60.5 (West Supp.

1999); Jackson v. Freeman , 905 P.2d 217, 222 (Okla. 1995). Thus, the Oklahoma

Court of Criminal appeals had the power to reverse the emergency panel. In

addition, the record reveals that the Oklahoma Court of Criminal Appeals

reversed the emergency panel because it found that the record did not support the

panel’s conclusion. Therefore, the court’s decision to affirm Mr. Williams’s

conviction and sentence was not arbitrary, and there is no basis for habeas relief

on this ground.

We conclude that Mr. Williams has failed to make a “substantial showing

-3- of the denial of a constitutional right,” as required under 28 U.S.C. § 2253(c).

Accordingly, we deny his application for a certificate of appealability.

This appeal is DISMISSED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

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