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    Jackson v. Friel, 10th Cir. (2010)

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    This order denies Lawrence Jackson's request for a certificate of appealability to appeal the denial of his habeas petition. Jackson had pled guilty to rape of a child and was sentenced to 15 years to life in prison. In his habeas petition, he raised issues that were either unexhausted in state court or were properly analyzed and denied by state courts under AEDPA standards. The district court found Jackson did not establish cause for his procedural default of unexhausted claims. The appellate court agrees and denies the request for a certificate of appealability, finding Jackson failed to make a substantial showing of the denial of a constitutional right or address the procedural grounds for denial.

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    Jackson v. Friel, 10th Cir. (2010)

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    This order denies Lawrence Jackson's request for a certificate of appealability to appeal the denial of his habeas petition. Jackson had pled guilty to rape of a child and was sentenced to 15 years to life in prison. In his habeas petition, he raised issues that were either unexhausted in state court or were properly analyzed and denied by state courts under AEDPA standards. The district court found Jackson did not establish cause for his procedural default of unexhausted claims. The appellate court agrees and denies the request for a certificate of appealability, finding Jackson failed to make a substantial showing of the denial of a constitutional right or address the procedural grounds for denial.

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    Filed: 2010-03-10 Precedential Status: Non-Precedential Docket: 09-4173

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    This order denies Lawrence Jackson's request for a certificate of appealability to appeal the denial of his habeas petition. Jackson had pled guilty to rape of a child and was sentenced to 15 years to life in prison. In his habeas petition, he raised issues that were either unexhausted in state court or were properly analyzed and denied by state courts under AEDPA standards. The district court found Jackson did not establish cause for his procedural default of unexhausted claims. The appellate court agrees and denies the request for a certificate of appealability, finding Jackson failed to make a substantial showing of the denial of a constitutional right or address the procedural grounds for denial.

    Copyright:

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

    Jackson v. Friel, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    This order denies Lawrence Jackson's request for a certificate of appealability to appeal the denial of his habeas petition. Jackson had pled guilty to rape of a child and was sentenced to 15 years to life in prison. In his habeas petition, he raised issues that were either unexhausted in state court or were properly analyzed and denied by state courts under AEDPA standards. The district court found Jackson did not establish cause for his procedural default of unexhausted claims. The appellate court agrees and denies the request for a certificate of appealability, finding Jackson failed to make a substantial showing of the denial of a constitutional right or address the procedural grounds for denial.

    Copyright:

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    March 10, 2010


    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    LAWRENCE M. JACKSON,
    Petitioner - Appellant,

    No. 09-4173

    v.

    (D. Utah)

    CLINT FRIEL, Warden,

    (D.C. No. 2:05-CV-00365-DB)

    Respondent - Appellee.

    ORDER DENYING
    CERTIFICATE OF APPEALABILITY *

    Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.

    This order is not binding precedent except under the doctrines of law of
    the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    Petitioner and appellant Lawrence M. Jackson, proceeding pro se, seeks a


    certificate of appealability (COA), in order to appeal the denial of a pending
    Fed. R. Civ. P. 59(e) motion to alter or amend the district courts prior judgment
    denying Mr. Jacksons 28 U.S.C. 2254 habeas petition. We decline to grant a
    COA and dismiss this matter.
    In 1998, Mr. Jackson pled guilty to rape of a child and was sentenced to a
    term of fifteen years to life. His sentence was affirmed on direct appeal by the
    Utah Court of Appeals. The Utah Supreme Court denied his petition for a writ of
    certiorari. Mr. Jackson then filed a post-conviction petition, which was
    dismissed, and that dismissal was affirmed on appeal. He did not file for
    certiorari review in the Utah Supreme Court.
    In this 2254 action, he raised all of the issues raised on direct appeal and
    in his post-conviction petition, as well as six new issues. The district court held
    that all of the issues except for the two which he presented to the Utah Supreme
    Court on direct appeal were unexhausted and procedurally defaulted. Further, the
    court held Mr. Jackson was unable to establish cause for his procedural default.
    Thus, the court did not address the merits of those issues. It did address the two
    exhausted issues, with respect to which the Utah Supreme Court had denied
    certiorari on Mr. Jacksons direct appeal. Regarding those two issues, the district
    court observed that the first issue was an allegation that the state trial court had
    violated state law, which is not properly the subject of a federal habeas action,
    -2-

    and the second issue had been properly analyzed by the Utah Supreme Court
    under the standards mandated by the Antiterrorism and Effective Death Penalty
    Act (AEDPA). The court therefore denied relief on those issues, and it denied
    Mr. Jacksons motion to alter or amend that judgment. The court also denied a
    COA.
    The issuance of a COA is jurisdictional. We will issue a COA only if the
    applicant has made a substantial showing of the denial of a constitutional right.
    28 U.S.C. 2253(c)(2). To make this showing, Mr. Jackson 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). Where the district court has rejected a
    claim on its merits, the petitioner must demonstrate that reasonable jurists would
    find the district courts assessment of the constitutional claims debatable or
    wrong. Id. When the district court dismisses a petition on procedural grounds,
    the applicant must not only make a substantial showing of the denial of a
    constitutional right; he must also demonstrate that the district courts dismissal
    on procedural grounds was debatable or incorrect. Id. at 485. Where a plain
    procedural bar is present and the district court is correct to invoke it to dispose of
    the case, a reasonable jurist could not conclude either that the district court erred

    -3-

    in dismissing the petition or that the petitioner should be allowed to proceed


    further. Id. at 484.
    Mr. Jackson fails to make a substantial showing of the denial of a
    constitutional right, nor does he address the procedural grounds, other than to
    seek permission to now exhaust his unexhausted claims, which he cannot do.
    Accordingly, we deny Mr. Jackson a COA. We also deny Mr. Jackson permission
    to proceed on appeal in forma pauperis. 1
    For the foregoing reasons, we DENY a COA and DENY permission to
    proceed ifp.
    ENTERED FOR THE COURT

    Stephen H. Anderson
    Circuit Judge

    Mr. Jackson filed a motion before the district court to stay his habeas
    action so that he could exhaust his issues in state court. The district court denied
    this motion. No notice of appeal from that denial has been filed.
    -4-

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