                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 29, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 TIMOTHY GRIFFITH,
                                                         Nos. 10-6027
               Petitioner - Appellant,                   and 10-6050
          v.                                           (W.D. Oklahoma)
 DAVID PARKER, Warden,                           (D.C. No. CV-08-00672-W)

               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 proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These

matters are therefore ordered submitted without oral argument.

      Timothy Griffith, a state prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to enable him to appeal the district court’s denial of his 28

U.S.C. § 2254 petition, as well as the denial of his motion to reconsider. Because



      *
       This order is not binding precedent except under the doctrines of law of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.
we find Mr. Griffith is not entitled to a COA to challenge either of the district

court’s orders, we deny him a COA and dismiss these matters.



                                  BACKGROUND

      Mr. Griffith was convicted by a jury in an Oklahoma state court of two

counts of attempted first-degree rape and eight counts of sexual abuse of a child.

He was sentenced to five years’ imprisonment on each of the attempted rape

counts and three years’ imprisonment on each of the sexual abuse counts, which

the district court decided to run consecutively. Mr. Griffith appealed his

convictions, raising nine claims for relief, including a challenge to the district

court’s decision to run his sentences consecutively. The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed Mr. Griffith’s convictions and sentences,

with the exception of one count of attempted rape, which the court reversed and

dismissed.

      Mr. Griffith then filed an application for post-conviction relief, arguing that

the trial court’s decision to order consecutive sentences violated his Sixth

Amendment right to have the jury determine his sentence. The state district court

denied Mr. Griffith’s application, concluding that Mr. Griffith had challenged the

propriety of his consecutive sentences on direct appeal, so that consideration of

that issue in post-conviction proceedings was barred by res judicata. Mr. Griffith

appealed once again to the OCCA, arguing that the imposition of consecutive

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sentences violated his Sixth Amendment right to a jury trial and further arguing,

for the first time, that he “was never advised during sentencing that he was being

sentenced under the 85% law.” R. Vol. 1, Part 1, at 18. 1 In denying

Mr. Griffith’s request for post-conviction relief, the OCCA observed that his

convictions and sentences had been affirmed on appeal, and that, accordingly, the

doctrine of res judicata barred the consideration of all issues previously ruled on

and all issues not raised in his direct appeal, but which Mr. Griffith could have

raised in that appeal.

       Mr. Griffith then brought the instant § 2254 petition, alleging (1) the trial

court lacked the authority to impose consecutive sentences and that the court’s

imposition of such sentences violated his right under the Sixth and Fourteenth

Amendments to have the jury determine his punishment; and (2) he was never

advised that he would be sentenced under the 85% law. The district court

rejected these claims and denied Mr. Griffith’s request for a COA to appeal its

decision. 2




       1
       The 85% law refers to the fact that, under Oklahoma law at the time,
defendants convicted of certain enumerated offenses must “serve not less than
eighty-five percent (85%) of any sentence of imprisonment imposed by the
judicial system prior to becoming eligible for consideration of parole.” See Okla.
Stat. Ann. tit. 21, § 13.1.
       2
        More precisely, the district court referred this case to a magistrate judge,
who issued a report and recommendation to dismiss the § 2254 petition, which the
district court then adopted.

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      With respect to Mr. Griffith’s first argument, the district court declined to

determine whether it was procedurally barred, but rather, addressed the argument

on its merits. See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004)

(“When questions of procedural bar are problematic . . . and the substantive claim

can be disposed of readily, a federal court may exercise its discretion to bypass

the procedural issues and reject a habeas claim on the merits.”). After noting that

Mr. Griffith’s argument about the unconstitutionality of his consecutive sentences

was based upon a series of Supreme Court cases, beginning with Apprendi v. New

Jersey, 530 U.S. 466 (2000), and continuing with Blakely v. Washington, 542

U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), the district

court relied upon a recent Supreme Court case specifically addressing the

authority of trial judges to decide whether a sentence should be served

consecutively or concurrently, Oregon v. Ice, 129 S. Ct. 711, 714 (2009), to

conclude that Mr. Griffith’s challenge to his consecutive sentences lacked merit. 3

      With respect to his second argument, regarding his awareness of the 85%

law, the district court held that Mr. Griffith had failed to raise this issue on direct

      3
       In Ice, the Supreme Court observed that its decisions in Apprendi and
Blakely held “that it is within the jury’s province to determine any fact (other
than the existence of a prior conviction) that increases the maximum punishment
authorized for a particular offense.” Ice, 129 S. Ct. at 714. The question
presented in Ice was whether it was also solely within the jury’s province to
determine whether sentences should be served concurrently or consecutively. The
Court held it was not: “The decision to impose sentences consecutively is not
within the jury function that ‘extends down centuries into the common law.’” Ice,
129 S. Ct. at 717 (quoting Apprendi, 530 U.S. at 477).

                                          -4-
appeal or in his initial post-conviction state court proceeding. Rather, he raised

this issue for the first time in his post-conviction appeal to the OCCA, which

found that claim procedurally barred and, accordingly, did not address the merits

of the claim. The district court therefore considered this claim procedurally

barred, unless Mr. Griffith could establish cause for and prejudice from holding

the claim procedurally barred, or demonstrate that the failure to address it would

result in a fundamental miscarriage of justice. The court concluded that

Mr. Griffith had shown neither cause nor prejudice, nor demonstrated that a

fundamental miscarriage of justice would result, and it denied relief on this claim.

The district court subsequently denied Mr. Griffith’s request for a COA, as well

as his request that the court reconsider its denial of a COA. Mr. Griffith seeks a

COA from this court to enable him to appeal those district court orders.

      In his quest to obtain a COA, Mr. Griffith repeats his general arguments

that the jury must determine his sentence, that he was never advised of the 85%

rule, and that he did not himself prepare his direct appeal and thus cannot be held

responsible or accountable for what is or is not contained in that appeal.



                                   DISCUSSION

      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. Griffith must demonstrate

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“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 court’s 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 court’s “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

in dismissing the petition or that the petitioner should not be allowed to proceed

further.” Id. at 484.

      As indicated above, the district court resolved one of Mr. Griffith’s

arguments on its merits and one on procedural grounds. We agree with the

court’s analysis of both issues, and we cannot improve upon its thorough and

thoughtful discussion. Accordingly, for substantially the reasons set forth in the

district court’s decision, we deny Mr. Griffith a COA to enable him to appeal the

district court’s orders. We also deny Mr. Griffith permission to proceed on

appeal in forma pauperis.

                                          -6-
                                 CONCLUSION

      For the foregoing reasons, we DENY Mr. Griffith a COA and we DENY

him the right to proceed on appeal ifp.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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