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    Brazille v. Booher, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit denied Cameron Brazille's request for a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. Brazille, an Oklahoma state prisoner, was convicted on multiple counts related to passing stolen checks. The district court rejected all of Brazille's claims, and the appellate court found that Brazille failed to make a substantial showing that his constitutional rights were denied. As a result, the court denied Brazille's request for a COA and dismissed his application.

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    Brazille v. Booher, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit denied Cameron Brazille's request for a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. Brazille, an Oklahoma state prisoner, was convicted on multiple counts related to passing stolen checks. The district court rejected all of Brazille's claims, and the appellate court found that Brazille failed to make a substantial showing that his constitutional rights were denied. As a result, the court denied Brazille's request for a COA and dismissed his application.

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    Filed: 2006-07-28 Precedential Status: Precedential Docket: 05-7049

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    The United States Court of Appeals for the Tenth Circuit denied Cameron Brazille's request for a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. Brazille, an Oklahoma state prisoner, was convicted on multiple counts related to passing stolen checks. The district court rejected all of Brazille's claims, and the appellate court found that Brazille failed to make a substantial showing that his constitutional rights were denied. As a result, the court denied Brazille's request for a COA and dismissed his application.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    16 views4 pages

    Brazille v. Booher, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied Cameron Brazille's request for a certificate of appealability to appeal the district court's denial of his petition for a writ of habeas corpus. Brazille, an Oklahoma state prisoner, was convicted on multiple counts related to passing stolen checks. The district court rejected all of Brazille's claims, and the appellate court found that Brazille failed to make a substantial showing that his constitutional rights were denied. As a result, the court denied Brazille's request for a COA and dismissed his application.

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    of 4

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT

    July 28, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    CA M ERO N C . BRA ZILLE,


    Petitioner - A ppellant,
    v.
    GLYNN BOOHER, W arden,

    No. 05-7049
    (E.D. Oklahoma)
    (D.Ct. No. CIV-02-440-S)

    Respondent - Appellee.

    OR D ER D EN YING LEAVE TO PROCEED


    ON APPEAL IN FORM A PAUPERIS,
    D EN Y IN G C ER TIFICATE OF APPEALABILITY,
    A ND DISM ISSIN G A PPLIC ATIO N

    Before KELLY, OBRIEN, and TYM KOVICH, 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)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Cameron C. Brazille, a state inmate appearing pro se, 1 seeks a certificate of
    appealability (COA) allowing him to appeal from the district courts denial of his

    We liberally construe Brazilles pro se pleadings. See Ledbetter v. City of


    Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

    petition for writ of habeas corpus under 28 U.S.C. 2254 . 2 Because Brazille has
    failed to make a substantial showing of the denial of a constitutional right as
    required by 28 U.S.C. 2253(c)(2), we deny a COA and dismiss his application.
    O n A ugust 17, 1999, B razille and Brenda Conard attempted to cash two
    stolen checks at Harps Foods Store in Fort Gibson, Oklahoma. They left the
    store in a pickup truck driven by another male. W hen the arresting officer
    stopped the pickup truck, the officer discovered a third stolen check on Brazilles
    person. B razille w as arrested and charged in Oklahoma state court with two
    counts of uttering a forged instrument (Counts 1 and 3) and three counts of
    knowingly concealing stolen property (Count 2, 4-5). The jury found him guilty
    on all five counts. The trial judge merged the three counts of knowingly
    concealing stolen property into one count, Count 2, and sentenced Brazille to
    three concurrent twenty year periods of imprisonment. Brazille appealed to the
    Oklahoma Court of Criminal Appeals (O CCA), w hich affirmed the conviction.
    He also filed a petition for post-conviction relief in state court which was denied;
    his appeal from that denial w as unsuccessful.

    Brazille never filed a request for a COA with the district court but did file a
    notice of appeal, which is construed as a request for a COA. F ED. R. A PP. P. 22(b);
    Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir. 1997). The district court never ruled on
    the COA issue. Under our Emergency General Order of October 1, 1996, we deem the
    district courts failure to issue a [COA] within thirty days after filing the notice of appeal
    as a denial of the certificate. United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th
    Cir. 2000).
    -2-

    On August 16, 2002, Brazille filed a 2254 petition in the United States
    District Court for the Eastern District of Oklahoma. In this petition, Brazille
    raised the following grounds for relief: (1) the stolen check found on his person
    (w hich was the basis for Count 5) should have been suppressed under the Fourth
    Amendment because it was the fruit of an unlaw ful search; (2) his sentence is
    excessive because no harm resulted from the offense; (3) he should not be held
    liable for the check Conard attempted to cash (Count 1) and insufficient evidence
    was presented that he aided and abetted her; (4) trial counsel was ineffective for
    failing to have Count 1 suppressed and to investigate the charges; (5) his double
    jeopardy rights were violated because he was charged with multiple crimes and
    received multiple sentences for a single act; (6) the testimony of the arresting
    officer and the owner of the stolen checks was not credible; and (7) the evidence
    was insufficient that he was the male individual who presented the checks at the
    store and in fact, it was the driver of the truck who presented the checks at the
    store. 3 In a thorough analysis, the magistrate judge rejected these claims on the
    merits. The district court agreed with the magistrate and denied Brazilles 2254

    In his appellate brief, Brazille claims the district court failed to address his
    argument that the state trial judge exceeded his authority by dismissing the jury prior to
    the penalty phase. The reason the district court did not address the argument is that he
    raised it for the first time in his objections to the magistrate judges report and
    recommendation. Moreover, Brazille failed to exhaust his state court remedies on this
    claim. Nevertheless, the record shows that Brazille stipulated for purposes of sentencing
    that he had two or more prior felony convictions. Consequently, no further fact-finding
    was necessary.
    -3-

    petition.
    W e have thoroughly reviewed the entire record, which includes the
    transcripts of Brazilles trial, and the relevant authority. For substantially the
    same reasons relied upon by the magistrate, w e cannot say 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. 4 Slack v. M cDaniel, 529 U.S. 473,
    484 (2000) (quotations omitted). Therefore, Brazilles request for a COA is
    DENIED and his application is DISM ISSED. Because Brazille has not show n
    the existence of a reasoned, nonfrivolous argument on the law and facts in
    support of the issues raised on appeal, his request to proceed in form a pauperis
    on appeal is DENIED. DeBardeleben v. Quinlan, 937 F.2d 502 , 505 (10th Cir.
    1991).
    Entered by the C ourt:
    Terrence L. O Brien
    United States Circuit Judge

    On appeal, Brazille claims the district court did not timely address his 2254
    petition. Because Brazilles petition was properly denied, any delay in its resolution was
    not prejudicial.
    -4-

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