ON APPEAL IN FORMA PAUPERIS AND DISMISSING APPEAL (D.C. Nos. 5:09-CV-01275-C and 5:08-CV-01282-C) (W.D. Okla.)
The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY, GRANTING MOTION FOR LEAVE TO PROCEED
Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.
Vecentie Sontiago Morales, Jr., an Oklahoma state prisoner proceeding pro se,*fn1 seeks a certificate of appealability (COA) to appeal from the district court's denial of each of two separate habeas corpus petitions. In Appeal No. 10-6182, he argues the district court improperly dismissed as time-barred his claim that the state court lacked jurisdiction to convict him for Obtaining Merchandise and Money by Means of False and Bogus Check (the false check conviction) and the district court should have considered his claim that counsel on appeal of the revocation of his resulting sentence was ineffective. Appeal No. 10-6115, relates to the execution of his sentence for a 2005 conviction for Uttering a Forged Instrument (the forged instrument conviction). He contends the State of Oklahoma violated his due process rights by running that sentence consecutive to instead of concurrent with other sentences. We deny both requests for COA.*fn2
In order to obtain a COA, Morales "must demonstrate both that reasonable jurists would debate the correctness of the district court's procedural ruling and that 'jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" See Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
II.APPEAL NO. 10-6182 - FALSE CHECK CONVICTION
Morales pled guilty in Oklahoma state court in 1999 to Obtaining Merchandise and Money by Means of a False and Bogus Check (after a previous felony conviction)*fn3 and was sentenced to 10 years in prison, with all but the first 18 months suspended. The suspension was "upon the condition that the defendant does not violate any City, State or Federal laws." (R. (10-6182) at 115.) On April 21, 2005, the trial court found Morales had violated its conditional sentencing order by, inter alia, writing another bogus check on January 4, 2000. The court revoked his suspended sentence and ordered Morales to serve his full sentence with credit for time served from February 7, 2005.
Morales unsuccessfully appealed from the revocation order, arguing the court sentenced him to an excessive term of imprisonment without considering alternatives to incarceration. He also filed several unsuccessful state court motions for post-conviction relief. On February 13, 2008, he filed another pro se motion in state court attacking his conviction on nine grounds. The state court denied the petition, concluding Morales was procedurally barred from raising all but his claim of ineffective assistance of appellate counsel on appeal of the revocation, which it rejected on the merits. The Oklahoma Court of Criminal Appeals (OCCA) affirmed.
Morales sought habeas relief under 28 U.S.C. § 2254 raising substantially the same issues he raised in state court. Relevant here, he claimed the Oklahoma criminal court lacked jurisdiction to convict and sentence him for a crime he alleges was committed in Texas and his attorney on appeal from the revocation of his suspended sentence was constitutionally ineffective.
The district court referred the petition to a magistrate judge as permitted by 28 U.S.C. § 636(b)(1)(B), for a report and recommendation (R&R). The magistrate recommended dismissal of the jurisdictional claim because it was time-barred and dismissal of his ineffective assistance of counsel claim because the OCCA's decision on the claim was neither contrary to nor an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Morales objected to the R&R, arguing his claims were not time-barred. The district court concluded Morales had only properly objected to the dismissal of ...