Frank Charles Carroll, Petitioner-appellant, v. D.m. O'neal, Respondent-appellee, 62 F.3d 1428 (10th Cir. 1995)

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US Court of Appeals for the Tenth Circuit - 62 F.3d 1428 (10th Cir. 1995)

Aug. 15, 1995


Before TACHA, LOGAN and KELLY, Circuit Judges.

ORDER AND JUDGMENT1 

LOGAN, Circuit Judge.


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 case is therefore ordered submitted without oral argument.

This matter is before the court on petitioner Frank C. Carroll's application for a certificate of probable cause. The right of a petitioner convicted of a state crime to appeal a federal district court's denial of habeas corpus relief is conditioned upon either the district court or this court granting a certificate of probable cause. See 28 U.S.C. 2253.

The Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), declared that the "primary means of separating meritorious from frivolous [habeas corpus] appeals should be the decision to grant or withhold a certificate of probable cause." We will not grant such a certificate unless the petitioner makes "a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings." Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994) (citing Barefoot, 463 U.S. at 893 & n. 4).

Petitioner contends that he was denied due process and equal protection during the proceedings at which he pleaded guilty to three drug-related charges in Oklahoma state court. Petitioner did not appeal those convictions. His principal objection is that he was never put under oath, though he signed a summary of the facts and statement of the rights he waived in the plea hearing.

The magistrate judge in the Report and Recommendation of October 31, 1994, and the district court in its Order of December 19, correctly analyzed the facts, the procedural posture of the case, and the applicable law. We conclude that petitioner has failed to make the necessary showing to warrant our issuance of a certificate of probable cause. Therefore, we deny his application and DISMISS the appeal.

The mandate shall issue forthwith.

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470