* This order and judgment is not binding precedent, e xcept under the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

### JAN 31 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

CLAYTON MILO FOX,

Petitioner - Appellant,

v. GLYNN BOOHER, Warden,

Respondent - Appellee. No. 02-6157 D.C. No. CIV-01-1721-F (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.-2-

Petitioner Clayton Milo Fox, an Oklahoma state pris oner proceeding pro se, requests a certificate of appealability (COA) to ch allenge the district court’s order denying his petition for a writ of habeas corpus fi led pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA is sued). We deny issuance of a COA and dismiss the appeal. Mr. Fox also seeks leave to proceed on appeal without prepayment of costs and fees; tha t request is denied. Background In October 2000, Mr. Fox entered pleas of guilty to the charges of second degree rape, possession of child pornography, posse ssion of marijuana, and conspiracy to commit a felony. Convictions were en tered on the guilty pleas and Mr. Fox was sentenced to ten years on each count, w ith five years suspended. The sentences are to run concurrently. Mr. Fox did not move to withdraw his guilty pleas. He filed a state post-conviction motion raising the same claims thathe pursues in this habeas action. After the state district court denied reli ef, Mr. Fox appealed to the Oklahoma Court of Criminal Appeals. The state appe llate court also denied relief, concluding that the record did “not establi sh [Mr. Fox] was denied effective assistance of counsel.” R. doc. 11, Ex. C, at 2. The state appellate court further held that Mr. Fox’s remaining contentions w ere procedurally barred because he had not filed a direct appeal. Id.-3- Discussion The charges arose from Mr. Fox’s involvement with afourteen-year-old girl. He argues that because the girl was married in Texas, under Texas law, she was an adult. Therefore, he claims, the Oklahoma c ourts had no jurisdiction to prosecute him. He also asserts that (1) his guilty pleas were not knowing and intelligent because he was informed of an incorrect sentencing range, (2) he received cruel and unusual punishment because he wa s not informed of the correct sentencing range and he might have received a harsher sentence, (3) there was not a factual basis to support his guilty plea to the conspiracy charge, and (4) he received ineffective assistance of counsel. The habeas petition was referred to a federal magistrate judge, see 28 U.S.C. § 636(b)(1)(B), who determined that Mr. Fox’ s jurisdictional claim was procedurally barred, his factual-basis claim was no t cognizable in federal habeas proceedings, and the remaining claims should be den ied on the merits. The magistrate judge recommended that the habeas petiti on be denied. The district court adopted the recommendation and denied the pet ition. We have reviewed the district court’s rulings on th e merits to see if Mr. Fox “demonstrate[d] that reasonable jurists wou ld find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In considering the distr ict court’s procedural rulings,-4-

we inquire whether Mr. Fox showed “that jurists of reason would find it debatable whether the petition states a valid claim of the de nial of a constitutional right and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Id. With these standards in mind, we have carefully rev iewed Mr. Fox’s briefs and the record on appeal. For the reasons underlyi ng the magistrate judge’s careful and thorough report and recommendation date d March 29, 2002, and adopted by the district court on May 3, 2002, we co nclude that Mr. Fox has not made a “substantial showing of the denial of a cons titutional right,” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). Leave to proceed on appeal without prepayment of co sts and fees is denied. Mr. Fox is reminded that the full $105.00 filing fe e for this appeal is due to the Clerk of the District Court. The application for i ssuance of a COA is denied. Appeal DISMISSED. The mandate shall issue forthwit h.

Entered for the Court

David M. Ebel Circuit Judge