Beruflich Dokumente
Kultur Dokumente
MAR 27 2001
PATRICK FISHER
Clerk
No. 00-6372
(W. District of Oklahoma)
(D.C. No. 00-CV-1575-W)
Respondent-Appellee.
habeas petition.
taken from a final order disposing of a 2254 petition unless the petitioner first
obtains a COA). Cooksey also filed a motion seeking to proceed
in forma
five issues raised in the two petitions. Similarly, all five issues were addressed
by this court when it dismissed Cookseys appeal.
Consequently,
the district court lacked jurisdiction over Cookseys 2254 petition and we,
therefore, vacate its order dismissing the petition. Because we conclude that the
instant 2254 petition is successive, we construe Cookseys application for a
COA and appellate brief as a request for authorization to file a second or
-3-
1997).
Pursuant to 28 U.S.C. 2244(b)(1), [a] claim presented in a second or
successive habeas corpus application under section 2254 that was presented in a
prior application shall be dismissed. It is clear that the only claim raised in this
petition, i.e. , that Cookseys sentence was improperly enhanced by a prior Texas
conviction, was raised in Cookseys first 2254 petition.
Michael R. Murphy
Circuit Judge
The AEDPA applies because the instant petition was filed after the Acts
April 24, 1996 effective date.
See Hatch v. Oklahoma , 92 F.3d 1012, 1014 (10th
Cir. 1996). Even if we were to apply pre-AEDPA standards, Cookseys
application to file a second or successive petition would be denied because his
claim was rejected on the merits in his first petition and the ends of justice
would not be served by a redetermination.
Sanders v. United States , 373 U.S. 1,
15 (1963); Hawkins v. Evans , 64 F.3d 543, 547 (10th Cir. 1995) ([A] federal
courts rejection of a state habeas petitioners constitutional claim on grounds of
state procedural default is a determination on the merits for purposes of the Rule
9(b) successive petition doctrine.).
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