                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 18 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 ROBERT C. WHITTIER,

          Petitioner-Appellant,
                                                         No. 00-7139
 v.
                                                   (D.C. No. 99-CV-508-S)
                                                         (E.D. Okla.)
 STEVE HARGETT, Warden,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Robert C. Whittier appeals the district court’s dismissal of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 and its denial of a certificate

of appealability. After reviewing Whittier’s brief and the magistrate judge’s

findings and recommended disposition, we conclude that Whittier has not made a

substantial showing of the denial of a constitutional right. See 28 U.S.C.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 2253(c)(2). Therefore, we agree with the district court and decline to issue a

certificate of appealability.

      Whittier raises two issues on appeal: First, he asserts that his conviction

violates the prohibition against double jeopardy because both offenses arose from

the same criminal act. Second, he alleges he was found competent to stand trial

under a competency standard that was subsequently held unconstitutional by the

Supreme Court in Cooper v. Oklahoma, 517 U.S. 348 (1996). The magistrate

judge found, correctly in our opinion, that “petitioner first raised both of these

claims in his second application for post-conviction relief.” (Doc. 8 at 2.)

Because Whittier failed to raise the claims on direct appeal or in his first

application for post-conviction relief, the Oklahoma Court of Criminal Appeals

was correct to procedurally bar them. See Whittier v. State, No. PC-1999-786

(Okla. Crim. App. Aug. 23, 1999).

      Two issues of timing are relevant. First, Whittier contends that he asserted

his claim of double jeopardy in his “addendum petition” to his first application

for post-conviction relief. The magistrate judge found, to the contrary, that this

addendum was filed on January 19, 1999, as part of his second post-conviction

action. (Doc. 8 at 2 n.1.) We have found no evidence to doubt the magistrate

judge’s finding. Second, Whittier had the opportunity to include his Cooper claim

in his first application for post-conviction relief because Cooper was decided on


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April 16, 1996, see Cooper v. Oklahoma, 517 U.S. 348 (1996), and Whittier filed

his first post-conviction action on June 6, 1996. The Oklahoma Court of Criminal

Appeals expressly found that Cooper “was decided before petitioner filed his first

post-conviction application.” (Doc. 8 at 3 (citing Whittier v. State, No. PC-1999-

786, at 2 (Okla. Crim. App. Aug. 23, 1999).)

      Consequently, for substantially the reasons stated in the magistrate judge’s

findings and recommended disposition and adopted by the district court, we

decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c).



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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