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    Lowe v. Champion, 10th Cir. (1997)

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    This order summarizes a federal court of appeals case regarding a petitioner seeking habeas corpus relief from his conviction of first degree perjury in Oklahoma state court. The district court dismissed the petition. The appeals court affirms, finding that the petitioner did not exhaust his state court remedies by not appealing his conviction. Additionally, his claims are procedurally barred because he did not pursue a direct appeal in state court. The petitioner failed to demonstrate cause for this default or that failure to consider his claims would result in a fundamental miscarriage of justice.

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    Lowe v. Champion, 10th Cir. (1997)

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    Scribd Government Docs
    20 views4 pages
    This order summarizes a federal court of appeals case regarding a petitioner seeking habeas corpus relief from his conviction of first degree perjury in Oklahoma state court. The district court dismissed the petition. The appeals court affirms, finding that the petitioner did not exhaust his state court remedies by not appealing his conviction. Additionally, his claims are procedurally barred because he did not pursue a direct appeal in state court. The petitioner failed to demonstrate cause for this default or that failure to consider his claims would result in a fundamental miscarriage of justice.

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    Filed: 1997-04-23 Precedential Status: Non-Precedential Docket: 96-6075

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    This order summarizes a federal court of appeals case regarding a petitioner seeking habeas corpus relief from his conviction of first degree perjury in Oklahoma state court. The district court dismissed the petition. The appeals court affirms, finding that the petitioner did not exhaust his state court remedies by not appealing his conviction. Additionally, his claims are procedurally barred because he did not pursue a direct appeal in state court. The petitioner failed to demonstrate cause for this default or that failure to consider his claims would result in a fundamental miscarriage of justice.

    Copyright:

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

    Lowe v. Champion, 10th Cir. (1997)

    Uploaded by

    Scribd Government Docs
    This order summarizes a federal court of appeals case regarding a petitioner seeking habeas corpus relief from his conviction of first degree perjury in Oklahoma state court. The district court dismissed the petition. The appeals court affirms, finding that the petitioner did not exhaust his state court remedies by not appealing his conviction. Additionally, his claims are procedurally barred because he did not pursue a direct appeal in state court. The petitioner failed to demonstrate cause for this default or that failure to consider his claims would result in a fundamental miscarriage of justice.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    APR 23 1997

    PATRICK FISHER
    Clerk

    RONALD DEAN LOWE,


    Petitioner-Appellant,
    v.
    RON CHAMPION and ATTORNEY
    GENERAL OF THE STATE OF
    OKLAHOMA,

    No. 96-6075
    (D.C. No. CIV-95-1012-M)
    (W.D. Okla.)

    Respondents-Appellees.

    ORDER AND JUDGMENT *

    Before BALDOCK, EBEL, and LUCERO, 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 filed a petition for writ of habeas corpus pursuant to 28 U.S.C.


    2254 urging collateral relief from the sentence imposed after he pled nolo
    contendere to a charge of first degree perjury. Petitioner stated in his petition that
    he did not appeal the perjury conviction because he did not want to withdraw the
    plea of nolo contendere, which would have been required to pursue a direct
    appeal. See R. Doc. 2 at 3. The district court dismissed the petition and granted
    a certificate of probable cause. 1 Our jurisdiction arises under 2253, and we
    affirm. 2
    In order for a petitioner to bring a claim to a federal court under 2254,
    the substance of [his] federal habeas corpus claim must first be presented to the
    state courts. Picard v. Connor, 404 U.S. 270, 278 (1971). When a petition
    Section 2253 was amended by the Antiterrorism and Effective Death
    Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996). Under the Act,
    state prisoners must now obtain a certificate of appealability, rather than a
    certificate of probable cause, in order to appeal the denial of a 2254 petition.
    Here, because both the granting of the certificate of probable cause and the filing
    of the appeal occurred before the amendment of 2253, the district court properly
    applied the version of 2253 then in effect. See Nickel v. Hannigan, 97 F.3d
    403, 407 n.4 (10th Cir. 1996), cert. denied, 1997 WL 85531 (U.S. Mar. 3, 1997).
    Respondents motion for consideration of a certificate of appealability and
    petitioners motion for extension of time and furnishment of case law in
    response to it are both denied.
    1

    The district courts judgment was entered on January 9, 1996. The notice
    of appeal was docketed as being filed on February 23. Petitioner has provided
    this court with sufficient documentation to establish that the notice of appeal was
    given to prison authorities within the time proscribed for filing a notice of appeal.
    See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 270 (1988).

    -2-

    contains claims that have not been first presented to a state court, those claims are
    considered to be unexhausted, and the federal court is required to dismiss such
    petitions. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Because he did not
    appeal his perjury conviction, petitioner did not exhaust his state court remedies.
    Additionally, because petitioner did not pursue a direct appeal of his
    perjury conviction, his claim is procedurally barred.
    In all cases in which a state prisoner has defaulted his federal
    claims in state 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.
    Coleman v. Thompson, 501 U.S. 722, 724 (1991). Oklahoma courts consistently
    prohibit post-conviction collateral relief based on claims that could have been
    raised on direct appeal but were not. See Steele v. Young, 11 F.3d 1518, 1522
    (10th Cir. 1993). Petitioner has shown neither cause nor prejudice nor a
    fundamental miscarriage of justice which would excuse his procedural default and
    allow a federal court to examine the merits of his claim. See id. Cause must
    be something external to the petitioner, something that cannot fairly be attributed
    to him. . . . Id. (quoting Coleman, 501 U.S. at 753). Petitioners decision not to
    appeal his perjury conviction because of his reluctance to renounce his nolo
    contendere plea does not establish cause. Because petitioner has made no
    -3-

    colorable showing of factual innocence, Herrera v. Collins, 506 U.S. 390, 404
    (1993) (further quotation omitted), there is no basis upon which to conclude that
    failure of the federal court to hear petitioners claim will result in a fundamental
    miscarriage of justice.
    The judgment of the United States District Court for the Western District of
    Oklahoma is AFFIRMED. The mandate shall issue forthwith.

    Entered for the Court

    Bobby R. Baldock
    Circuit Judge

    -4-

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