Branch v. Howard, No. 11-6220 (10th Cir. 2012)
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Pro se prisoner Petitioner-Appellant Anthony Branch sought a certificate of appealability to challenge the district court's denial of his application for habeas relief. Petitioner was convicted on one count of second-degree burglary. During opening arguments to the jury in the sentencing phase, the government referred to the length of Petitioner's previous sentences for other crimes. The court declared a mistrial and dismissed the jury. Petitioner then waived his right to be sentenced by a jury. The trial court sentenced Petitioner to a twenty-year term of imprisonment. Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), where he was represented by different counsel. His sole argument on appeal was that the trial court erred in overruling his demurrer on sufficiency-of-the-evidence grounds. The OCCA affirmed Petitioner's conviction and sentence. Petitioner then turned to the federal court by filing a pro se petition for the writ of habeas corpus. The court concluded that Petitioner's petition raised claims for relief that he had not yet exhausted in state court. A magistrate judge recommended that the case be administratively closed rather than dismissed so that Petitioner could reopen the proceedings once he had exhausted his claims in state court. The district court adopted the magistrate's recommendation and stayed the case. Upon review of Petitioner's application for a COA, his opening brief, the magistrate's report and the district court's orders, the Tenth Circuit concluded that Petitioner did not make a substantial showing of the denial of his constitutional rights to warrant granting him the writ. Accordingly, the Court denied Petitioner's application for a COA and dismissed his appeal.
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