Cotner v. Hargett, 10th Cir. (1998)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
JAN 8 1998
PATRICK FISHER
Clerk
ROBERT E. COTNER,
Petitioner-Appellant,
No. 96-6349
(D.C. No. CIV-96-42-M)
(W.D. Okla.)
v.
STEVE HARGETT,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, 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. 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This order and judgment is not binding precedent, except under the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.
Petitioner Robert E. Cotner seeks leave to appeal from the district courts
order adopting the magistrate judges report and recommendation and denying in
part and dismissing in part his petition for a writ of habeas corpus under
28 U.S.C. 2254. We construe his application for a certificate of appealability as
one for probable cause 1 and grant that application. We affirm that part of the
district courts order denying the petition, vacate that part of the order dismissing
the petition, and remand the case to the district court with instructions to deny the
petition in its entirety.
Cotner was convicted in 1992, in case No. CRF-91-194 in the District
Court of Creek County, Oklahoma, of (1) possession of a controlled drug with
intent to distribute, after former conviction of one drug related felony; (2)
possession of marijuana with intent to distribute, after former conviction of one
drug related felony; (3) failure to affix a tax stamp, after former conviction of two
The Supreme Court recently held that the new provisions of Chapter 153 of
Title 28 of the United States Code, which includes 2253(c) requiring certificates
of appealability, added by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), are generally not applicable to cases filed before AEDPAs
effective date, April 24, 1996. See Lindh v. Murphy, 117 S. Ct. 2059, 2068
(1997). Thus, Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996), cert. denied, 117
S. Ct. 746 (1997), has been overruled to the extent that Lennox held that
2253(c) applied to habeas petitions filed prior to AEDPAs effective date. See
United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (en banc).
Because the habeas petition in this case was filed prior to that date, petitioner is
not subject to AEDPA, but he is subject to 2253s previous requirement that he
obtain a certificate of probable cause to appeal.
1
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felonies; (4) weapon use in the commission of a crime, after former conviction of
two felonies; (5) manufacturing a fictitious drivers license, after former
conviction of two felonies; and (6) manufacturing a fictitious birth certificate. He
is currently incarcerated serving four life sentences, a twenty-year sentence, and a
thirty-day sentence. In his petition, which he filed on January 9, 1996, he raised
the following grounds for relief:
1. The State of Oklahoma unconstitutionally suspended his
rights to seek habeas relief through its post-conviction act.
2. He is incarcerated on an invalid judgment and sentence
because the trial court did not have subject matter jurisdiction over
his case. (His seventh ground repeats this contention.)
3. The use of the summary opinion format by Oklahoma
appellate courts to deny direct appeals denies him due process and
meaningful access to the courts.
4. The states refusal to provide adequate legal assistance
personnel or system is a denial of meaningful access to the courts.
5. The state has created a suspect class of pro se prisoner
litigants and has discriminated against this class.
6. Various claims that he raised in a separate civil rights
action that was dismissed, Cotner v. Oklahoma ex rel. Creek County,
No. CIV-94-1783-T (W.D. Okla. 1994). Cotner does not identify the
claims, but states that they should be incorporated into his petition.
The state filed a response seeking dismissal of the petition for failure to exhaust
state remedies. The case was referred to a magistrate judge. In her report and
recommendation, she recommended that the petition be denied in part and
-3-
dismissed in part without prejudice. Cotner filed an objection to the magistrate

judges report and recommendation, contending only that the states postconviction procedures were not adequate and that he had exhausted his claims.
Adopting the magistrate judges report and recommendation, the district
court construed the petition as raising issues challenging the denial of state
habeas review and the trial courts lack of subject matter jurisdiction and seeking
to incorporate the claims raised in one of his prior civil rights actions. The district
court determined that grounds one, three, four and five alleged at most procedural
errors with respect to state habeas or post-conviction procedures and thus did not
state federal constitutional claims cognizable on habeas. The court noted that the
complaint in the civil rights case, No. CIV-94-1783-T, had been dismissed in part
as frivolous. It then found the claims from that case that Cotner was trying to
incorporate into his petition were without merit and should be denied. As to the
remaining claim, the trial courts alleged lack of subject matter jurisdiction, the
court stated that it was unclear whether Cotner had exhausted this claim in state
court. The court determined that there was concurrent jurisdiction between itself,
which has jurisdiction over the facility in which Cotner is incarcerated, and the
Northern District of Oklahoma, which has jurisdiction over the county in which
Cotner was convicted. See 28 U.S.C. 2241(d). Concluding that the case would
be more appropriately handled in that district, the court dismissed the remaining
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claim contained in the petition without prejudice to Cotners refiling it in the

Northern District. The court also denied a variety of motions Cotner had filed.
On appeal, Cotner contends 2 that it was fundamental error for the district
court to dismiss his petition without holding an evidentiary hearing. He contends
generally that state post-conviction procedures are inadequate and
unconstitutional and that he has exhausted all state post-conviction remedies. 3
We agree with the district court that challenges to state post-conviction
procedures do not rise to the level of federal constitutional claims cognizable on
habeas. See Hopkinson v. Shillinger, 866 F.2d 1185, 1219-20 (10th Cir. 1989)
Cotner has filed a variety of briefs and motions in this court. In addressing
his appeal, we will consider matters raised only in his combined Application for
Certificate of Appealability and Opening Brief and the two documents he
expressly incorporated into that document, which are labeled Petition in Error and
Appeal Brief and his Petition for Habeas Corpus. We decline his request that we
assume original jurisdiction over his Petition for Habeas Corpus.
In the document labeled Petition for Habeas Corpus, Cotner appears to raise
several new claims: ineffective assistance of trial and appellate counsel; double
jeopardy; factual innocence; and mental incompetence. The phrase ineffective
assistance of counsel claim did appear in Cotners habeas petition in the district
court, but there is no further explanation of this claim, and Cotner did not include
it in his stated grounds for relief. Moreover, in restating Cotners claim in her
report and recommendation, the magistrate judge did not include an ineffective
counsel claim, and Cotner did not object to the judges failure to address this
claim. See United States v. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir.), cert. denied, 117 S. Ct. 271 (1996) (failure to object to magistrate
judges report and recommendation waives right to appeal magistrate judges
ruling). The other issues were not presented to the district court at all, and we
therefore will not consider them on appeal. See Walker v. Mather (In re Walker),
959 F.2d 894, 896 (10th Cir. 1992).
3
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(Even if the state postconviction petition was dismissed arbitrarily, the petitioner
can present anew to the federal courts any claim of violation of his federal
constitutional rights.). Cotner does not provide any argument regarding the
district courts denial of the claims previously brought in case No.
CIV-94-1783-T, nor have we even been informed what these claims were. Cotner
has thus failed to demonstrate that the district court erred in denying these claims.
That leaves Cotners claim that the trial court lacked subject matter
jurisdiction to convict and sentence him. Although there may be some question
over whether Cotner has exhausted this claim, we may address the merits of
unexhausted 2254 federal habeas corpus claims if they fail, as here, to raise
even a colorable federal claim, and if the interests of justice would be better
served by addressing the merits of the habeas petition. Miranda v. Cooper, 967
F.2d 392, 400 (10th Cir. 1992); see also Hoxsie v. Kerby, 108 F.3d 1239, 1242-43
(10th Cir.), cert. denied, 118 S. Ct. 126 (1997).
Cotners lack of subject matter jurisdiction claim actually contains several
sub-claims not necessarily related to subject matter jurisdiction. Cotner first
contends that his Fifth Amendment right to be charged only by an indictment
issued by a grand jury was violated because he was charged by an information and
he did not waive his right to a grand jury indictment. However, the Fifth
Amendment right to grand jury indictment does not apply to states, and Cotner
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therefore has no right under the United States Constitution to a grand jury
indictment. Minner v. Kerby, 30 F.3d 1311, 1318 (10th Cir. 1994). Cotner also
contends that because he was charged by information, he could be sentenced to no
more than twelve months. Even if this state law claim could somehow be
construed as the denial of a federal constitutional right, it fails as a matter of state
law. Oklahoma does not limit the length of sentences that may be imposed when
the prosecution is commenced based on an information. See, e.g. Johnson v.
State, 476 P.2d 395, 395-96 (Okla. Crim. App. 1970) (rejecting argument, in case
in which defendant was sentenced to seventeen years imprisonment, that
conviction was illegal because defendant was charged by information rather than
grand jury indictment); Fesmire v. State, 456 P.2d 573, 583 (Okla. Crim. App.
1969) (under Oklahoma constitution, prosecutions may be by indictment or
information as they are alternative modes and . . . a prosection [for a capital
offense] by information does not violate either the 14th or 5th amendment of the
Constitution of the United States), vacated in part on other grounds, 408 U.S.
935 (1972).
Finally, Cotner contends that under Oklahomas 1994 Truth in Sentencing
Act, he could not have been sentenced to more than twelve months. Again, even if
this state law claim could somehow be construed as the denial of a federal
constitutional right, it fails as a matter of state law. The effective date of the
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1994 act creating the Oklahoma Truth in Sentencing Policy Advisory

Commission, 1994 Okla. Sess. Laws 355, codified at 22 Okla. Stat. tit. 22,
1501-1515, was July 1, 1994, which is obviously after Cotners 1992
convictions, and the act is not retroactive. See id. 1511.E (Beginning July 1,
1996, when imposing a criminal sentence, the court shall impose the sentence
under the sentencing criteria formulated and adopted pursuant to this section [by
the Advisory Commission] if such criteria have been approved by the
Legislature.). The Oklahoma Truth in Sentencing Act was enacted in 1997, see
1997 Okla. Sess. Laws 133, and does not take effect, with exceptions not relevant
here, until July 1, 1998. See id. 612, 613. Cotner thus has stated no valid
habeas claim based on either of these two acts.
We thus conclude that the district court should have denied that portion of
Cotners petition claiming that the trial court lacked subject matter jurisdiction
and related issues, rather than dismissing this portion of the petition without
prejudice.
We AFFIRM the district courts order to the extent that it denied portions
of Cotners habeas petition and denied various other motions. We VACATE the
courts order to the extent that it dismissed in part the petition without prejudice,
-8-
and we REMAND the case to the district court with directions to enter an order
denying the petition in its entirety. All pending motions are DENIED. The
mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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Cotner v. Hargett, 10th Cir. (1998)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT *

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

dismissed in part without prejudice. Cotner filed an objection to the magistrate

claim contained in the petition without prejudice to Cotners refiling it in the

1994 act creating the Oklahoma Truth in Sentencing Policy Advisory

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