                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                   TENTH CIRCUIT                                March 28, 2011

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
VECENTIE SONTIAGO MORALES, JR.,

       Petitioner - Appellant,
                                                        Nos. 10-6115 & 10-6182
v.                                                  (D.C. Nos. 5:09-CV-01275-C and
                                                           5:08-CV-01282-C)
JUSTIN JONES, Director,                                       (W.D. Okla.)

       Respondent - Appellee.




                     ORDER DENYING REQUEST FOR
                    CERTIFICATE OF APPEALABILITY,
                GRANTING MOTION FOR LEAVE TO PROCEED
                     ON APPEAL IN FORMA PAUPERIS
                        AND DISMISSING APPEAL


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Vecentie Sontiago Morales, Jr., an Oklahoma state prisoner proceeding pro se,1

seeks a certificate of appealability (COA) to appeal from the district court’s denial of

each of two separate habeas corpus petitions. In Appeal No. 10-6182, he argues the

district court improperly dismissed as time-barred his claim that the state court lacked

jurisdiction to convict him for Obtaining Merchandise and Money by Means of False and

Bogus Check (the false check conviction) and the district court should have considered

       1
        We construe pro se pleadings liberally. See Ledbetter v. City of Topeka Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
his claim that counsel on appeal of the revocation of his resulting sentence was

ineffective. Appeal No. 10-6115, relates to the execution of his sentence for a 2005

conviction for Uttering a Forged Instrument (the forged instrument conviction). He

contends the State of Oklahoma violated his due process rights by running that sentence

consecutive to instead of concurrent with other sentences. We deny both requests for

COA.2

                               I.    STANDARD OF REVIEW

        In order to obtain a COA, Morales “must demonstrate both that reasonable jurists

would debate the correctness of the district court’s procedural ruling and that ‘jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right.’” See Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

               II.   APPEAL NO. 10-6182 - FALSE CHECK CONVICTION

A. Background

        Morales pled guilty in Oklahoma state court in 1999 to Obtaining Merchandise

and Money by Means of a False and Bogus Check (after a previous felony conviction)3

and was sentenced to 10 years in prison, with all but the first 18 months suspended. The

suspension was “upon the condition that the defendant does not violate any City, State or



        2
            Our jurisdiction to consider a request for a COA derives from 28 U.S.C. § 2253.
        3
        Morales was convicted of violating Okla. Stat. Ann. tit. 21, § 1541.2. He was
also separately convicted under the same statute for a different incident; the sentence
imposed ran concurrent with the sentence at issue here. As the other conviction is not
before us, we discuss it no further.

                                              -2-
Federal laws.” (R. (10-6182) at 115.) On April 21, 2005, the trial court found Morales

had violated its conditional sentencing order by, inter alia, writing another bogus check

on January 4, 2000. The court revoked his suspended sentence and ordered Morales to

serve his full sentence with credit for time served from February 7, 2005.

       Morales unsuccessfully appealed from the revocation order, arguing the court

sentenced him to an excessive term of imprisonment without considering alternatives to

incarceration. He also filed several unsuccessful state court motions for post-conviction

relief. On February 13, 2008, he filed another pro se motion in state court attacking his

conviction on nine grounds. The state court denied the petition, concluding Morales was

procedurally barred from raising all but his claim of ineffective assistance of appellate

counsel on appeal of the revocation, which it rejected on the merits. The Oklahoma

Court of Criminal Appeals (OCCA) affirmed.

       Morales sought habeas relief under 28 U.S.C. § 2254 raising substantially the

same issues he raised in state court. Relevant here, he claimed the Oklahoma criminal

court lacked jurisdiction to convict and sentence him for a crime he alleges was

committed in Texas and his attorney on appeal from the revocation of his suspended

sentence was constitutionally ineffective.

       The district court referred the petition to a magistrate judge as permitted by 28

U.S.C. § 636(b)(1)(B), for a report and recommendation (R&R). The magistrate

recommended dismissal of the jurisdictional claim because it was time-barred and

dismissal of his ineffective assistance of counsel claim because the OCCA’s decision on

the claim was neither contrary to nor an unreasonable application of Strickland v.

                                             -3-
Washington, 466 U.S. 668 (1984). Morales objected to the R&R, arguing his claims

were not time-barred. The district court concluded Morales had only properly objected to

the dismissal of the jurisdictional claim. Determining that claim was untimely, it adopted

the R&R and dismissed the petition. The court denied Morales’ request for a COA.

B. Discussion

       In his request for a COA with this Court, Morales presents only two claims: (1) his

jurisdictional claim4 is not time-barred and (2) his attorney on appeal from the revocation

of his suspended sentence was ineffective for failing to raise issues related to his original

sentence. Morales provided a detailed objection to the magistrate’s R&R on the

timeliness of his jurisdictional claim and his argument, while meritless, is sufficient to

preserve the issue for appeal. He then stated: “The petitioner also objects to the [R&R]

on grounds of error numbers one, three, four, five, six, seven, eight and nine as the

petitioner has argued case law to prove that he is not time barred on these issues.” (R.

(10-6182) at 702-03.)

       “[W]e . . . have adopted a firm waiver rule that provides that the failure to make

timely objections to the magistrate’s findings or recommendations waives appellate

review of both factual and legal questions.” United States v. One Parcel of Real



       4
         The basis for Morales’ claim appears to be the fact that he wrote an insufficient
funds check drawn on an Oklahoma bank account to a Texas tool supplier. We are not
convinced the claim is jurisdictional in nature. The Complaint and Information alleges
the crime occurred in Oklahoma. Morales alleges it was committed in Texas. That is a
question of fact. Because resolution of this appeal does not depend on whether he has
raised a legitimate state court jurisdictional issue, we will address the claim as Morales
has characterized it.

                                            -4-
Property, 73 F.3d 1057, 1059 (10th Cir. 1996) (quotations omitted). “[A] party’s

objections to the magistrate judge’s report and recommendation must be both timely and

specific to preserve an issue for de novo review by the district court or for appellate

review.” Id. at 1060. We agree with the district court that the only claim properly

objected to (and hence properly preserved for appeal) was the timeliness of the

jurisdictional claim. Morales’ general statement that his other claims were also not time-

barred is insufficient to preserve them for appeal. Accordingly, only the timeliness of the

jurisdictional claim is before us.

       Morales does not attack the district court’s time calculations under the statute5 but

argues subject matter jurisdiction can never be waived and therefore he can never be

barred from raising the issue. This argument is without support in the law. In his state

post-conviction proceedings, Morales claimed the trial court lacked jurisdiction over his

crime and was denied relief. Insofar as the claim raises a violation of state law, it is not

cognizable in a federal habeas action. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.

2000). Morales’ claim is only cognizable in federal habeas to the extent that it raises a

violation of the United States Constitution or federal law. See 28 U.S.C. § 2254(a).

“Absence of jurisdiction in the convicting court is indeed a basis for federal habeas

corpus relief cognizable under the due process clause.” Yellowbear v. Wyo. Attorney



       5
        In adopting the R&R, the district court concluded the jurisdictional claim was
time barred under AEDPA’s one-year limitations period. See 28 U.S.C. § 2244(d). The
time limitation for filing a habeas action is subject to equitable tolling in extraordinary
circumstances, see Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007), but Morales
does not allege any such circumstances.

                                             -5-
Gen., 525 F.3d 921, 924 (10th Cir. 2008). Morales makes no argument to differentiate

this case from any other due process violation. As with any other habeas claim, it is

subject to dismissal for untimeliness. See, e.g., United States v. Patrick, 264 Fed. Appx.

693, 694-95 (10th Cir. 2008) (unpublished) (affirming district court’s dismissal of

untimely habeas petition challenging convicting court’s jurisdiction);6 c.f., Gibson v.

Klinger, 232 F.3d 799, 803, 808 (10th Cir. 2000) (affirming dismissal of due process

habeas claim as time barred under AEDPA).

     III.    APPEAL NO. 10-6115 - FORGED INSTRUMENT CONVICTION

   A. Background

       While he was serving his reinstated sentence for the false check conviction,

Morales was convicted by a jury of Uttering a Forged Instrument (after a previous felony

conviction) and was sentenced to 27 years in prison.7 The trial court did not specify

whether his sentence should run concurrent with or consecutive to any other sentence. In

fact, neither the Judgment and Sentence nor the sentencing transcript refers to any prior

sentence. The Oklahoma Department of Corrections (ODOC) did not start the clock on

Morales’ new sentence immediately but deferred counting any time toward it until he

finished serving the sentences for which he was incarcerated at the time of conviction.



       6
      Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Patrick merely as an example.
       7
         Morales was charged in 2002 and convicted in 2005 under OKLA STAT tit. 21,
§ 1592 for acts he committed in 2001. He apparently altered a 60 cent money order to
760 dollars and then cashed it. He committed the crime while his sentence for the false
check conviction was suspended but was not tried and convicted until he was serving the
reinstated sentence.

                                            -6-
Morales contends this was a violation of his constitutional rights.

       After exhausting his remedies with the prison and state court, Morales filed a 28

U.S.C. § 2254 petition, arguing his sentence should have run from the date it was

imposed, concurrent with the sentences he was in the process of serving. The petition

was referred to a magistrate judge, who determined it to be an unauthorized second or

successive petition. 8 He concluded transfer to this Court for such authorization was

inappropriate because Morales’ claim was meritless. Consequently, he recommended the

petition be dismissed for lack of jurisdiction. See 28 U.S.C. § 2244(b)(3)(A). Morales

objected, arguing his petition was not second or successive because he was attacking the

administration of his sentence and not the sentence itself or, in the alternative, the case

should be transferred to this Court for the appropriate authorization. The district court

adopted the magistrate judge’s recommendation, agreeing that Morales’ petition was a

second or successive petition and transfer to this Court was not warranted. See 28 U.S.C.

§ 1631. Morales filed a Notice of Appeal, which the district court construed as a request

for a COA and denied.




       8
         A petitioner must move this Court for permission to file a second or successive §
2254 petition in the district court and we may only authorize the filing of such a petition
if we determine it makes a prima facie showing satisfying the requirements of the statute.
See 28 U.S.C. § 2244(b)(3)(A) & (C). The statute requires the claim not have been
presented in a prior application and limits the grounds on which a petitioner may request
relief. See 28 U.S.C. § 2244(b)(1) & (2). “When a second or successive § 2254 or §
2255 claim is filed in the district court without the required authorization from this court,
the district court may transfer the matter to this court if it determines it is in the interest of
justice to do so under § 1631, or it may dismiss the motion or petition for lack of
jurisdiction.” In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008).

                                              -7-
B. Discussion

       Although Morales invoked § 2254 in filing his petition, he now claims the district

court should have considered it under 28 U.S.C. § 2241 because it attacks the execution

of his sentence not the propriety of the sentence itself. Morales is correct. “Petitions

under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas

and § 2255 proceedings, which are used to collaterally attack the validity of a conviction

and sentence.” McIntosh v. U.S. Parole Com’n, 115 F.3d 809, 811 (10th Cir. 1997)

(citation omitted). Morales’ argument must be carefully scrutinized. He does not

contend the convicting court was without authority to impose consecutive sentences.9 He

argues the ODOC was without authority to defer the start date of his sentence while he

served time for other convictions and was required to run his sentence from the date the

trial judge imposed it. The district court should have treated his claim as brought under §

2241.10 But that does not mean he is entitled to relief. We will not grant a COA or

remand the case to the district court because we conclude Morales has not made a

“substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).

See Montez, 208 F.3d at 865-66 (denying a request for COA where the district court

improperly considered the petition under § 2254 instead of § 2241 because the underlying

       9
        Oklahoma courts have discretion to run sentences concurrently or consecutively.
Harris v. State, 772 P.2d 1329, 1331 (Okla. Crim. App. 1989).
       10
          Morales is currently incarcerated in the Lawton Correctional Facility, so a
petition under 28 U.S.C. § 2241 would properly be filed, as this one was, in the Western
District of Oklahoma. See Montez, 208 F.3d at 865 (§ 2241 petition is properly filed in
the district in which the petitioner is confined); Haugh v. Booker, 210 F.3d 1147, 1149
(10th Cir. 2000) (same). Moreover, because he is a state prisoner, he must obtain a COA
to appeal from the denial of a § 2241 petition. Montez, 208 F.3d at 867.

                                            -8-
claims were without merit).

       Relief is available under 28 U.S.C. § 2241(c)(3) only if a petitioner shows “[h]e is

in custody in violation of the Constitution or laws or treaties of the United States.”

Morales alleges Oklahoma is violating his due process rights by running his sentences

consecutively instead of concurrently.

       Under Oklahoma law, unless an order directs two sentences to be run

concurrently, they run consecutively. Beck v. State, 478 P.2d 1011, 1012 (Okla. Crim.

App. 1970). The date upon which a sentence is imposed is of no matter. Okla. Stat. Ann.

tit. 21, § 61.1 directs:

       When any person is convicted of two or more crimes in the same
       proceeding or court or in different proceedings or courts, and the judgment
       and sentence for each conviction arrives at a state penal institution on
       different dates, the sentence which is first received at the [penal] institution
       shall commence and be followed by those sentences which are
       subsequently received at the institution, in the order in which they are
       received by the institution, regardless of the order in which the judgments
       and sentences were rendered by the respective courts, unless a judgment
       and sentence provides that it is to run concurrently with another
       judgment and sentence.

(Emphasis added).

       The trial court’s sentencing order does not mention any sentence other than the

one imposed and does not direct Morales’ sentence to be run concurrent with any other

sentence. Because Morales was already serving sentences at the time he was convicted,

his sentence for the forged instrument conviction did not begin to run until his other

sentences were completed. Oklahoma’s approach is not uncommon; the federal




                                             -9-
statutes,11 as well as a number of states, employ the presumption that sentences run

consecutively unless otherwise ordered. See Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711,

714 (2009) (“In some States, sentences for multiple offenses are presumed to run

consecutively, but sentencing judges may order concurrent sentences . . . .”). Morales

presents no authority suggesting this settled and widespread practice violates

constitutional norms. His claim does not meet the requirements for habeas relief under

28 U.S.C. § 2241.

       We DENY Morales’ requests for a COA but GRANT his motions to proceed in

forma pauperis in both appeals.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




       11
          Under 18 U.S.C. § 3584(a), “[m]ultiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently.”

                                          - 10 -
