Allen Wayne Eldridge, Petitioner-appellant, v. H.n. Scott, Warden; the Attorney General of the State Ofoklahoma, Respondents-appellees, 963 F.2d 382 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Allen Eldridge appeals, pro se, the denial of habeas relief.

Mr. Eldridge was convicted in state court of first degree rape after former conviction of two or more felonies and was sentenced to fifty years in prison. The Oklahoma Court of Criminal Appeals affirmed the conviction but modified the sentence to twenty years. Mr. Eldridge unsuccessfully pursued post conviction relief.

Mr. Eldridge filed his pro se habeas conviction in the United States District Court asserting: (1) "erroneous afterformer"; (2) improper jury instructions; and (3) an improper Allen charge.

The district court held Mr. Eldridge was not deprived of due process when the state criminal appeals court modified defendant's sentence to twenty years as it represented the minimum allowable statutory sentence. See Carbray v. Champion, 905 F.2d 314 (10th Cir. 1990) (where state court reduces sentence to a permissible term, appellant suffers no prejudice amounting to a due process violation). The district court determined the state trial court record failed to support defendant's remaining assertions and denied Mr. Eldridge habeas relief.

Mr. Eldridge appeals, pro se, asserting: (1) his sentence is null and void as it is excessive; (2) one of his prior convictions was not final; (3) one of his prior convictions was a misdemeanor; and (3) the district court's factual findings are clearly erroneous. He asserts he is entitled to a lesser minimum sentence.

In order for us to reach the conclusion urged by Mr. Eldridge, we would first have to ignore the factual findings of the Oklahoma courts, and this we are not permitted to do. Second, Mr. Eldridge is now raising issues and factual assertions that were not raised before the trial court. Third, the record on appeal fails to disclose Mr. Eldridge exhausted in the state court the issues he is now raising in this appeal. Fourth, the record on appeal fails to support Mr. Eldridge's contentions. Finally, Mr. Eldridge fails to persuade us the district court's decision was erroneous.

The judgment of the district court is AFFIRMED for substantially the same reasons set forth in the district court's order dated and entered December 23, 1991.