* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY COTTEN,

Petitioner - Appellant, No. 98-7102
v. (E.D. Oklahoma) RONALD J. CHAMPION, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. (D.C. No. CV-95-577-B)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Cotten also filed an application to proceed in form a pauperis. However,

before the application was ruled upon in this court , he paid his fee in full. - 2 - Terry Cotten, appearing pro se, seeks a certificate of appealability in order to appeal from the district court’s dismissal of hi s 28 U.S.C. § 2254 petition for writ of habeas corpus. 1 Because Cotten has failed to make “a substantial showing of the denial of a constitutional right,” we deny h is application for a certificate of appealability and dismiss this appeal. 28 U.S.C. § 2253(c)(2). In December 1976, an Oklahoma state jury convicted Cotten and a codefendant of second degree murder in connection w ith a robbery and killing which occurred in May 1976. Pursuant to the statut e in effect at the time the offense was committed, the trial judge sentenced Co tten to an indeterminate sentence of ten years to life. See Okla. Stat. tit. 21, § 701.4 (repealed July 24, 1976). Cotten and his codefendant perfected directappeals, and the Oklahoma Court of Criminal Appeals upheld their convictions. Riggle v. State , 585 P.2d 1382 (Okla. Crim. App. 1978). In November 1995, Cotten filed this federal habeas petition. He argued that his indeterminate sentence of ten years to lif e should be modified to a determinate ten-year term. He contended the indete rminate sentence was unconstitutional under White v. State , 774 P.2d 1072 (Okla. Crim. App. 1989), despite our decision in Murray v. Cowley , 913 F.2d 832 (10th Cir. 1990)2 Cotten failed to note that a later decision by the Oklahoma Court of

Criminal Appeals confirmed that the more specific l aw in effect at the time the offense was committed governs the sentencing. SeeBowman v. State , 789 P.2d 631 (Okla. Crim. App. 1990) (applying the identical provision under which Cotten was sentenced). - 3 - (upholding such a sentence under § 701.4, and distinguishing White as involving its successor, Okla. Stat. tit. 21 § 701.9). Based upon his understanding of White , he argued his sentence was controlled by Okla. Stat . tit 57, § 353, and that he “was not eligible for the indeterminate sentence be cause the sentence was imposed by the judge and not the jury.” 2R. Vol. I, Tab 2. Cotten also argued that he was fundamentally prejudiced at trial becau se the State was allowed to change its charge from first to second degree murde r, but it was not required to change the charging information, which contained in flammatory language related to the elements of first degree murder. R. Vol. I, Tab 2. The State first filed a motion to dismiss based on failure to exhaust. R. Vol. I, Tab 5. According to the State, Cotten had filed a similar petition in state court, which the Oklahoma trial court denied becaus e Cotten had failed to raise the issues either in his direct appeal or in his fi rst state habeas petition. The State then noted that, although Cotten attempted to appea l that denial, his appeal was dismissed as untimely. Because Cotten could still apply for leave to appeal out of time, the State contended that he had failed to exh aust his state remedies. The3 The copy of the trial court’s order, submitted by b oth Cotten and the State,

does not include a certificate of mailing to Cotten . R. Vol. I, Tab 11, Ex. A.

4However, he offered no excuse or explanation for hi s failure to timely raise the issue related to the allegedly inflammato ry information. - 4 - magistrate judge disagreed, finding that Cotten hadexhausted his state remedies. Id. , Tab 7. After Cotten filed an amended petition, the State f iled its response, this time arguing a procedural bar. Id. , Tab 11. In support, the State noted the following: Cotten had filed a total of four state court petitions for post conviction relief; the first in 1985, the second in 1989, the third in 1990, and the fourth in 1995. Each was denied, but Cotten properly appeale d only the first denial. R. Vol. I, Tab 11 at 1-2 & Ex. A. The State argued th at Cotten’s untimely appeal of the trial court’s denial of his fourth petition, wh ich raised the same issues he sought to raise in his federal petition, resulted i n a dismissal of that appeal based on adequate and independent state grounds. In his responsive filings, Cotten claimed he did not receive notice of the court’s de nial until after the appeal period had run; therefore, his untimely appeal was due to no fault of his own. 3 He also contended that the trial court’s denial was erroneous, since his sentencing claim was based on the 1989 Oklahoma Court of Crimi nal Appeals decision in White v. State

. 4- 5 -

Finding that Cotten had failed to show cause and ac tual prejudice, or a fundamental miscarriage of justice, the magistrate judge recommended the dismissal of Cotten’s petition as procedurally barr ed. Cotten filed objections in which he summarily claimed cause, prejudice, and fundamental miscarriage of justice. After conducting a de novo review, the di strict court adopted the magistrate judge’s recommendations. In this appeal, Cotten reiterates the conclusory ar guments set out in his objections to the magistrate judge’s recommendation s. Having thoroughly reviewed the record, we agree with the district court’s conclusions. Cotten’s protestations do not satisfy the requirements of cause and actual prejudice as set forth in Coleman v. Thompson , 501 U.S. 722, 750 (1991). Nor has he shown any fundamental miscarriage of justice. See Gilbert v. Scott , 941 F.2d 1065, 1068 n.2 (10th Cir. 1991). Accordingly, we DENY the certificate of appealabili ty and DISMISS the appeal. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge- 6 -