      Case: 09-6166    Document: 01018331743
                                                                           FILED
                                                   Date Filed: United States Court 1 Appeals
                                                               12/16/2009 Page: of
                                                                       Tenth Circuit

                                                                   December 16, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                  TENTH CIRCUIT


 VECENTIE SONTIAGO MORALES,
 JR.,

               Petitioner-Appellant,
                                                           No. 09-6166
 v.                                                 (Case No. 08-CV-01283-C)
                                                           (W.D. Okla.)
 JUSTIN JONES, Director,

               Respondent-Appellee.


                                       ORDER *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


        Petitioner, a pro se state prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition relating to a

sentence revocation hearing. In 1999, Petitioner pled guilty to obtaining

merchandise or money by means of a false and bogus check following a former

felony conviction, and he was sentenced to a ten-year term of imprisonment with

all but the first eighteen months suspended. In 2005, a hearing was held on the

prosecution’s application to revoke the suspended sentence. The state district



        *
        This order is not binding precedent, except under the doctrines of law of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.
   Case: 09-6166     Document: 01018331743       Date Filed: 12/16/2009    Page: 2



court found that Petitioner had violated the terms of his probation, and the court

therefore revoked the suspended sentence and sentenced Petitioner to serve a term

of imprisonment of eight years and six months. The revocation and sentence were

affirmed on direct appeal, and Petitioner’s request for post-conviction relief was

denied by the state district court and again on appeal. Petitioner then filed the

instant federal habeas petition, in which he challenged the legality of the original

suspended sentence, 1 the state court’s decision to revoke the entire suspended

portion of the sentence, several procedural aspects of the revocation proceeding, a

restitution order given in the revocation proceeding, and the effectiveness of his

appellate counsel.

      The case was referred to a magistrate judge, who determined that Petitioner

was not entitled to federal habeas relief on any of his claims. The magistrate

judge concluded that most of the claims were procedurally defaulted because

Petitioner did not raise these arguments in his direct appeal and did not claim in

his petition for state post-conviction relief that his appellate counsel was

ineffective for failing to raise these claims. See Murray v. Carrier, 477 U.S. 478,

488 (1986). As for the claim that the original suspended sentence was invalid, the


      1
       Petitioner argued that the trial court did not have authority under
Oklahoma law to suspend any portion of the sentence because Petitioner had more
than one prior felony conviction at the time. See Davis v. State, 845 P.2d 194,
197 (Okla. Crim. App. 1993); Bumpus v. State, 925 P.2d 1208, 1210 (Okla. Crim.
App. 1996). The ten-year sentence itself was within the statutory range of
punishment for this offense.

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magistrate judge determined that this claim was time-barred because it should

have been raised within one year after the original conviction became final. The

magistrate judge concluded that Petitioner had properly exhausted his claim that

counsel was ineffective for failing to assert the invalidity of the original

suspended sentence. However, on the merits, the magistrate judge concluded that

Petitioner had not satisfied the standard set forth in Strickland v. Washington, 466

U.S. 668, 689 (1984), in light of the Oklahoma Court of Criminal Appeals’

holding that state law would not permit appellate counsel to use the revocation

appeal to challenge Petitioner’s original sentence. Finally, as for Petitioner’s

argument that the state district court erred in revoking the entire suspended

sentence and sentencing him to serve eight and one-half years of imprisonment,

the magistrate judge concluded that Petitioner had not demonstrated that this

sentence was grossly disproportionate to the severity of the crime.

      The district court agreed with the magistrate judge’s conclusions and

therefore denied Petitioner’s habeas petition. Petitioner now seeks a certificate of

appealability as to all of the claims raised in that petition. Rather than addressing

the procedural grounds on which his claims were dismissed, he focuses on the

merits of the asserted claims. However, after thoroughly reviewing the record on

appeal, Petitioner’s filings in this court, the magistrate judge’s report and

recommendation, and the district court’s ruling, we conclude that reasonable

jurists would not debate the correctness of the dismissal of most of his claims on

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procedural grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). As for

those claims that were considered on the merits, we conclude that reasonable

jurists would not find the magistrate judge’s assessment of these claims debatable

or wrong. See id. Therefore, for substantially the reasons set forth by the

magistrate judge and district court, we DENY Petitioner’s request for a certificate

of appealability and DISMISS the appeal. We GRANT Petitioner’s motion for

leave to proceed in forma pauperis.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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