Filed: Patrick Fisher
Filed: Patrick Fisher
AUG 13 2001
PATRICK FISHER
Clerk
No. 00-5228
(D.C. No. 98-CV-127-BU)
(N.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT
Before SEYMOUR and McKAY , Circuit Judges, and
Judge.
After examining the petitioners brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal.
This order and judgment is not binding precedent, except under the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 Glenn Wayne Lee, an Oklahoma state prisoner proceeding pro se,
was convicted by a jury of unlawful possession of a controlled drug with intent to
distribute after former conviction of a felony and unlawful possession of
paraphernalia. He seeks a certificate of appealability (COA) to challenge the
district courts order denying his petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. 2254.
had not presented these claims to the state courts, the district court held that the
exhaustion requirement of 2254(b) was met because requiring petitioner to file
another successive state-court application for post-conviction relief would be
futile. The district court denied habeas relief, holding that petitioners claims
were not cognizable in a federal habeas proceeding. Petitioner appeals,
reasserting his challenge to the States post-conviction procedures.
This case is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). Before a COA will issue, petitioner must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). To do so, he
must demonstrate that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further. Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).
We have carefully reviewed petitioners brief and the appellate record. For
substantially the same reasons underlying the district courts November 3, 2000
order denying habeas relief, we conclude that petitioner has failed to make the
required showing to obtain a COA under 2253(c)(2).
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Monroe G. McKay
Circuit Judge
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