Crain v. Scott, 10th Cir. (2000)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
JAN 5 2000
PATRICK FISHER
Clerk
MARCUS DEJUAN CRAIN,

Petitioner-Appellant,
v.
No. 99-6228
H.N. SCOTT; ATTORNEY GENERAL

OF THE STATE OF OKLAHOMA,
(D.C. No. 97-CV-413)

(W.D. Okla)
Respondent-Appellee.
ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
In June 1994, Petitioner Marcus Dejuan Crain pled guilty in Oklahoma state court
to conspiracy to commit a felony, concealing stolen property, and twelve counts of first
degree robbery, after former conviction of two or more felonies. The trial court sentenced
Petitioner to 30 years imprisonment on each of the first degree robbery convictions and 25
This order and judgment is not binding precedent, except under the doctrines of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.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
**
years imprisonment on each of the remaining counts, with all sentences to be served
concurrently, but consecutive to sentences Petitioner received in other cases for three
counts of concealing stolen property and three counts of making a false declaration to a
pawnbroker, all after former conviction of a felony. Petitioner did not move to withdraw
his guilty pleas and did not perfect a direct criminal appeal. Instead, he unsuccessfully
sought post-conviction relief in state court. Thereafter, Petitioner filed a petition for a
writ of habeas corpus under 28 U.S.C. 2254 in federal district court raising five claims:
(1) insufficient evidence supported his conviction for first degree robbery; (2) insufficient
evidence supported his conviction for conspiracy to commit a felony; (3) the trial court
erred by failing to require full disclosure of the plea agreement and by misadvising him
about the consequences of such plea agreements; (4) the trial court erred by failing to
establish a factual basis for the guilty pleas entered on the robbery charges; and (5) trial
counsel was ineffective for allowing Petitioner to enter guilty pleas to charges he knew
nothing about and did not commit, and for failing to file a pretrial motion to quash the
information.
In a thorough report and recommendation, a magistrate judge recommended denial
of the petition. The magistrate judge concluded that Petitioners first four claims were
procedurally barred and that Petitioner failed to demonstrate cause and prejudice or a
fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750
(1991) (In all cases in which a state prisoner has defaulted his federal claims in state
2
court pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.). The
magistrate judge further concluded that Petitioners ineffective assistance of counsel
claim lacked merit. The district court subsequently adopted the report and
recommendation and denied Petitioner a certificate of appealability. See 28 U.S.C.
2253(c). His renewed application is before us.
A petitioner may appeal the denial of a 2254 petition only if a circuit justice or
judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1)(A). A certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right. Id. at 2253(c)(2). We conclude that Petitioner has
failed to make the required showing.
We have thoroughly reviewed Petitioners application for a certificate of
appealability, his brief, the magistrate judges report and recommendation, the district
courts order adopting that report and recommendation, and the entire record before us.
We conclude that Petitioner has failed to make a substantial showing of the denial of a
constitutional right substantially for the reasons set forth in the magistrate judges report
and recommendation. Accordingly, we deny his request for a certificate of appealability
and dismiss the appeal.
3
CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.

Entered for the Court,
Bobby R. Baldock
Circuit Judge

Crain v. Scott, 10th Cir. (2000)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

MARCUS DEJUAN CRAIN,

H.N. SCOTT; ATTORNEY GENERAL

(D.C. No. 97-CV-413)

ORDER AND JUDGMENT*

CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.

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