                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      October 12, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 TER RY DO WD Y ,

                 Petitioner-A ppellant,                  No. 06-6218
          v.                                            (W .D. of Okla.)
 JUSTIN JONES,                                     (D.C. No. CV-04-399-H)

                 Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Terry Dow dy, an O klahoma state prisoner appearing pro se, seeks a

certificate of appealability (COA) to challenge the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus. For substantially the same

reasons set forth by the magistrate judge, we find that Dowdy has failed to make

the requisite showing for a COA and therefore DENY his request.




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order 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.
                                   I. Background

      Terry Dowdy is a state prisoner in Lawton, Oklahoma. In 1993, Dowdy

pled guilty to marijuana possession and was sentenced to fifteen years

imprisonment, with three years suspended. After two unsuccessful post-

conviction actions in state court and shortly before his 12-year prison term was

set to expire, Dowdy initiated federal habeas proceedings. He claimed his

sentence was illegal because it contained a suspended sentence for which he was

ineligible, 1 and that his guilty plea w as involuntary as a result. The district court

agreed and in 2001 granted conditional habeas relief unless the State gave Dowdy

an opportunity to withdraw his guilty plea. The State promptly provided this

opportunity and, against the advice of counsel, Dowdy withdrew his plea. On

M ay 3, 2001, the district court entered an order and judgment denying Dowdy’s

habeas petition because the State had complied with the mandate set forth in the

conditional writ.

      The State elected to reprosecute Dowdy. At a bench trial in state court on

December 11, 2001, Dowdy was convicted of unlawful possession of marijuana

with intent to distribute after former conviction of one or more drug related

felonies and sentenced to twenty years. On direct appeal, the Oklahoma Court of

Criminal Appeals (OCCA) affirmed Dowdy’s conviction and sentence but

      1
        Under Oklahoma law, Dowdy was ineligible for a suspended sentence
because of a previous felony conviction. W hy this fact was unknown or
disregarded during Dowdy’s sentencing hearing is unclear from the record.

                                          -2-
remanded the case to the trial court with directions that Dowdy be given credit for

the time he served on his original conviction. Dowdy’s subsequent application

for post-conviction relief was denied. The OCCA affirmed, holding that

consideration of all issues raised on direct appeal were res judicata and that

Dowdy had waived all other issues that could have been previously asserted.

M oreover, the OCCA disposed of Dowdy’s jurisdictional, double jeopardy, and

ineffective assistance of counsel claims on the merits.

      Dowdy’s current § 2254 petition asserts the following five grounds for

habeas relief: (1) the trial court was without jurisdiction to retry him because he

had discharged his original sentence before the State gave him the opportunity to

withdraw his plea; (2) his subsequent twenty-year sentence violates state and

federal constitutional prohibitions against double jeopardy; (3) trial and appellate

counsel were ineffective for failing to argue the lack of jurisdiction and double

jeopardy issues; (4) trial and appellate counsel were ineffective for failing to

argue the Fourth Amendment search and seizure issue raised on direct appeal; and

(5) trial and appellate counsel were ineffective for failing to investigate and

challenge the use of invalid prior convictions to enhance his present sentence. In

a 30-page report and recommendation, the magistrate judge rejected all of

Dowdy’s claims. Upon de novo review , the district court adopted the magistrate

judge’s recommendation and dismissed Dowdy’s petition.




                                          -3-
                                     II. Discussion

      To appeal the district court’s denial of his § 2254 petition, Dow dy must

obtain a COA by making “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003).

“[A] claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that [the]

petitioner w ill not prevail.” Id.

      For substantially the same reasons set forth by the magistrate judge, we

find that Dowdy has failed to make the requisite showing for a COA. The

magistrate judge’s 30-page report and recommendation thoroughly analyzes the

record and is supported by the applicable law. W ith respect to D ow dy’s first

claim that the state trial court lacked jurisdiction to retry him, the magistrate

judge properly concluded that this is a state law question that is not cognizable

under § 2254, which is confined to alleged errors of federal law. M orris v.

Burnett, 319 F.3d 1254, 1268 (10th Cir. 2003). Regarding Dowdy’s double

jeopardy claim, we agree that the OCCA’s rejection of the claim involved a

reasonable application of federal law:

      The Double Jeopardy Clause of the Fifth Amendment, as applied to the states
      through the Fourteenth Amendment, protects against successive prosecutions
      for the same offense after acquittal or conviction and against multiple criminal

                                          -4-
      punishments for the same offense. “It has long been settled, however, that the
      Double Jeopardy Clause’s general prohibition against successive prosecutions
      does not prevent the governm ent from retrying a defendant who succeeds in
      getting his first conviction set aside, through direct appeal or collateral attack,
      because of some error on the proceedings leading to the conviction.”

M agistrate Judge’s Report and Recommendation at 12 (quoting Lockhart v.

Nelson, 488 U.S. 33, 38 (1988)). 2 The magistrate judge’s analysis of Dowdy’s

ineffective assistance of trial and appellate counsel claims w as likewise correct,

and we agree that none of the grounds asserted rises to the level of a substantial

showing of a denial of a constitutional right as required for a COA to issue.

                                   III. Conclusion

      For the reasons above we DENY Dowdy’s application for a COA and

DISM ISS this appeal.

                                 Entered for the Court,

                                 Timothy M . Tymkovich
                                 Circuit Judge




      2
         See also District Court Order at 3–4 (“The record in this case reflects
that [Dowdy] made certain critical, tactical decisions in the course of
proceedings. One was to pursue (against the advice of his counsel) the
withdrawal of his guilty plea under circumstances where his initial sentence, later
determined to be illegal, was substantially served. That he ended up with a longer
sentence after retrial and resentencing is unfortunate for him, but does not render
the resulting conviction or sentence infirm under the applicable standards.”

                                          -5-
