                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 25 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ROBERT KNOWLES, JR.,

           Petitioner - Appellant,
 vs.                                                    No. 00-6258
                                                   (D.C. No. 99-CV-63-R)
 REGINALD HINES,                                        (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. Knowles, a state prisoner appearing pro se, seeks to appeal from the

district court’s denial of a habeas petition, 28 U.S.C. § 2254. We deny a

certificate of appealability and dismiss the appeal.

       The parties are familiar with the facts and procedural history, so we need

not repeat it, except as necessary for our analysis. Mr. Knowles pled guilty to


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
two criminal offenses and was sentenced to “20 [years] to . . . be served as 120

nights” in the county jail. R. doc. 3, ex. C, at 2 (Plea of Guilty Summary of

Facts). 1 After having failed to serve 120 nights of confinement within the

prescribed time period, Mr. Knowles was sentenced to 20 years’ imprisonment

within the Department of Corrections. R. doc. 10, ex. B, at 2.

        Mr. Knowles sought federal habeas relief on four grounds: (1) his sentence

violated Oklahoma law; (2) he could only be sentenced to 120 nights of

confinement in the county jail; (3) he had ineffective assistance of counsel; and

(4) his second post-conviction petition should not have been procedurally barred.

R. doc. 3, at 3-7. The district court concluded that Mr. Knowles’ sentence was

not a permissible option under Oklahoma law, and granted the writ unless Mr.

Knowles was given the opportunity to withdraw his pleas. R. doc. 13. Mr.

Knowles declined to do so, however, and his sentence, absent the provision for

night-time confinement in the county jail, was reinstated by the state court. R.

doc. 15, ex. B, at 3-4. Thereafter, the district court amended its judgment denying

the writ as the condition it imposed had been fulfilled.

        In a supplemental brief and reply brief to the district court, Mr. Knowles

reasserted that he could only be sentenced to 120 nights of confinement in the



        1
            Mr. Knowles had been convicted of three prior felonies. R. doc. 3, ex. C,
at 3.

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county jail. R. doc. 22, at 2-8, doc. 24. The magistrate judge recommended that

Mr. Knowles’ petition be denied. Pursuant to Stewart v. State, 989 P.2d 940

(Okla. Crim. App. 1999), the Oklahoma courts “had the authority to re-sentence

[Mr. Knowles] to a term of imprisonment within the statutorily prescribed range”

as a matter of state law. R. doc. 25, at 6. To the extent that a different procedure

was envisioned by Stewart, this failure to “follow state procedure . . . does not

state a claim of constitutional magnitude” because his punishment did not exceed

that permitted by statute. Id. Finally, the additional grounds asserted by Mr.

Knowles for habeas relief—that he was deprived of effective assistance of

counsel at sentencing and that his second post-conviction petition should not have

been procedurally barred—were moot because Mr. Knowles was afforded the

opportunity to withdraw his plea. Id. at 7. The district court adopted the

magistrate judge’s recommendation and denied Mr. Knowles’ petition. R. doc.

28.

      We have reviewed the record, including the district court orders, the

magistrate judge’s recommendations, and Mr. Knowles’ application for a COA

and accompanying brief. Having done so, we hold that Mr. Knowles has failed to

“demonstrate that reasonable jurists would find the district court's assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 120 S.Ct.

1595, 1603-04 (2000). Mr. Knowles’ challenge to his sentence, which was


                                         -3-
imposed pursuant to Stewart and is consistent with Oklahoma law and the

OCCA’s unpublished decision in Palmer v. Oklahoma, No. C-97-665 (Okla. Crim.

Ct. App. July 2, 1998) 2, is not constitutionally cognizable. Dennis v. Poppel, 222

F.3d 1245, 1258 (10th Cir. 2000) (state law sentencing errors are not cognizable

for federal habeas relief). Nor does Mr. Knowles’ sentence implicate double

jeopardy concerns. Ward v. Williams, 240 F.3d 1238, 1243 (10th Cir. 2001)

(“Illegal sentences do not confer legitimate expectations of finality because they

are subject to change. Furthermore, a defendant cannot gain a legitimate

expectation of finality in a sentence that he challenged.”).

      Accordingly, we DENY the application for a COA and DISMISS the

appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




      2
        Pursuant to Rule 3.5(C)(3), an unpublished opinion of the Oklahoma
Court of Criminal Appeals is not binding on that court, but may be cited under
certain conditions.

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