                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             NOV 22 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 DONALD E. STOLTZ,

          Petitioner-Appellant,

 v.                                                 Nos. 00-6188 & 00-6288
                                                          (W.D. Okla.)
 CALVIN SANDERS, Administrative                    (D.Ct. No. CIV-99-1035-R)
 Officer; STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
       Appellant Donald E. Stoltz, a state inmate appearing pro se, appeals the

district court’s decision denying his habeas petition filed pursuant to 28 U.S.C.

§ 2254. 1 We deny Mr. Stoltz’s motion for a certificate of appealability, deny his

motion to proceed in forma pauperis, and dismiss his appeal.



       The crux of Mr. Stoltz’s § 2254 petition centered on the State of

Oklahoma’s revocation of his suspended sentence. In short, Mr. Stoltz’s claimed:

1) his initial suspended sentence and later revocation thereof were unlawful under

the Oklahoma and United States Constitutions; 2) the state court lacked

jurisdiction under Oklahoma law to revoke his suspended sentence; and 3) the

state improperly delayed his revocation hearing, violating Oklahoma law and the

United States Constitution. Later, in a reply brief responding to the state’s

pleadings, Mr. Stoltz requested an evidentiary hearing and claimed the state trial

court committed a double jeopardy violation by resentencing him after revocation

of his suspended sentence.




       1
         Mr. Stoltz filed two appeals concerning his petition. First, he filed a notice of
appeal concerning the district court’s Order denying his petition. He then filed another
notice of appeal following the district court’s Order denying his motion for a certificate of
appealability. On this court’s own motion, we consolidated these two appeals and
adopted Mr. Stoltz’s opening brief for both appeals.


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       The federal district court assigned the matter to a magistrate judge who

issued a cogent and thorough Report and Recommendation, carefully addressing

each of Mr. Stoltz’s claims. In brief, the magistrate judge recommended: 1)

denying Mr. Stoltz’s petition with respect to his first two claims, explaining they

raised issues of state law; dismissing his third claim as conclusory, unsupported

and lacking a showing of prejudice to Mr. Stoltz; denying Mr. Stoltz’s double

jeopardy claim as untimely and lacking merit; and denying Mr. Stoltz’s request

for an evidentiary hearing because he failed to carry the requisite burden to

support his request. Following a review of Mr. Stoltz’s objections to the

magistrate judge’s recommendations, the district court adopted the magistrate

judge’s Report and Recommendation in its entirety, and issued an Order denying

his petition.



       On appeal, Mr. Stoltz raises the same claims presented in his petition and

addressed by the magistrate judge and district court. In addition, Mr. Stoltz

generally asserts the magistrate judge considered the “wrong cases” in

considering Mr. Stoltz’s revocation and double jeopardy “situation.” 2


       2
          We note the magistrate judge applied relevant, cogent Supreme Court, Tenth
Circuit, Oklahoma and other persuasive authority in determining revocation of Mr.
Stoltz’s suspended sentence implicated state law and did not rise to a federal issue
cognizable in a federal habeas proceeding. Moreover, we have long held revocation of a
suspended sentence does not constitute double jeopardy. See, e.g., Gillespie v. Hunter,

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       To the extent Mr. Stoltz is contesting the legality of his original suspended

sentence, and thereby its validity, we construe his petition as arising under 28

U.S.C. § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). To

the extent Mr. Stoltz is challenging the revocation of his sentence, we construe

his petition as filed under 28 U.S.C. § 2241 because it challenges the execution of

his sentence, rather than its validity. Id. 3 Even though the district court

considered Mr. Stoltz’s petition as filed only under § 2254, we find it unnecessary

to remand to the district court for reconsideration of Mr. Stoltz’s § 2241 claim, as

the legal reasoning the district court applied for denying that claim under § 2254

applies equally for the denial of his claim under § 2241. We review de novo the

district court’s legal conclusions in denying Mr. Stoltz’s habeas petition. See

Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct.

944 (2000) (articulating standard of review for § 2254 petitions); Patterson v.

Knowles, 162 F.3d 574, 575 (10th Cir. 1998) (articulating standard of review for



159 F.2d 410, 412 (10th Cir. 1947) (determining statute, allowing court to revoke a
suspended sentence and impose a sentence which might originally have been imposed,
did not trigger double jeopardy violation).

       3
         See also State v. Hejduk, 232 P.2d 664, 667 (Okla. Crim. App. 1951) (holding
that when the court issues a suspended sentence, the initial sentence continues to stands,
and the “execution” of the sentence is merely deferred and can be revoked any time
during the period of the sentence); cf. Demry v. State, 986 P.2d 1145, 1147 (Okla. Crim.
App. 1999).


                                            -4-
§ 2241 petitions). After a careful review of the record and the applicable case

law, we conclude Mr. Stoltz fails to make a substantial showing of the denial of a

constitutional right as required under 28 U.S.C. § 2253(c)(2) for a certificate of

appealability. 4 Specifically, Mr. Stoltz fails to demonstrate “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, ___, 120 S. Ct. 1595, 1604 (2000).

Because we agree with the district court and magistrate judge’s well-reasoned

assessment of the issues presented on appeal, we decline to duplicate the same

analysis here.



       Accordingly, for substantially the same reasons set forth in the district

court’s July 28, 2000 and May 24, 2000 Orders, and the magistrate judge’s April

27, 2000 Report and Recommendation, we deny Mr. Stoltz’s motion for a




       4
         While a certificate of appealability is not necessary for a federal prisoner to
proceed under § 2241, a state prisoner, like Mr. Stoltz, must obtain a certificate of
appealability to appeal the denial of a habeas petition whether such petition was filed
pursuant to § 2254 or § 2241. See Montez, 208 F.3d at 866-67.


                                             -5-
certificate of appealability, deny his motion to proceed in forma pauperis, and

DISMISS his appeal.


                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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