* This order and judgment is not binding precedent, e xcept under the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 8 1998 

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

ROBERT E. COTNER,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 96-6349 (D.C. No. CIV-96-42-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The Supreme Court recently held that the new provis ions of Chapter 153 of

Title 28 of the United States Code, which includes § 2253(c) requiring certificates of appealability, added by the Antiterrorism and Ef fective Death Penalty Act of 1996 (AEDPA), are generally not applicable to cases filed before AEDPA’s effective date, April 24, 1996. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997). Thus, Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), has been overruled to the extentthat Lennoxheld that § 2253(c) applied to habeas petitions filed prior t o AEDPA’s effective date. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (en banc ). Because the habeas petition in this case was filed prior to that date, petitioner is not subject to AEDPA, but he is subject to § 2253’s previous requirement that he obtain a certificate of probable cause to appeal. -2- Petitioner Robert E. Cotner seeks leave to appeal f rom the district court’s order adopting the magistrate judge’s report and re commendation and denying in part and dismissing in part his petition for a writof habeas corpus under 28 U.S.C. § 2254. We construe his application for a certificate of appealability as one for probable cause 1 and grant that application. We affirm that part o f the district court’s order denying the petition, vacate that part of the order dismissing the petition, and remand the case to the district c ourt with instructions to deny the petition in its entirety. Cotner was convicted in 1992, in case No. CRF-91-19 4 in the District Court of Creek County, Oklahoma, of (1) possession of a controlled drug with intent to distribute, after former conviction of on e drug related felony; (2) possession of marijuana with intent to distribute, after former conviction of one drug related felony; (3) failure to affix a tax sta mp, after former conviction of two-3-

felonies; (4) weapon use in the commission of a cri me, after former conviction of two felonies; (5) manufacturing a fictitious driver s license, after former conviction of two felonies; and (6) manufacturing afictitious birth certificate. He is currently incarcerated serving four life sentenc es, a twenty-year sentence, and a thirty-day sentence. In his petition, which he fil ed on January 9, 1996, he raised the following grounds for relief:

1. The State of Oklahoma unconstitutionally suspen ded his rights to seek habeas relief through its post-convi ction act. 2. He is incarcerated on an invalid judgment and s entence because the trial court did not have subject matterjurisdiction over his case. (His seventh ground repeats this content ion.) 3. The use of the summary opinion format by Oklaho ma appellate courts to deny direct appeals denies him due process and meaningful access to the courts. 4. The state’s refusal to provide adequate legal a ssistance personnel or system is a denial of meaningful acces s to the courts. 5. The state has created a suspect class of pro se prisoner litigants and has discriminated against this class. 6. Various claims that he raised in a separate civ il rights action that was dismissed, Cotner v. Oklahoma ex re l. Creek County , No. CIV-94-1783-T (W.D. Okla. 1994). Cotner does n ot identify the claims, but states that they should be incorporatedinto his petition. The state filed a response seeking dismissal of the petition for failure to exhaust state remedies. The case was referred to a magistr ate judge. In her report and recommendation, she recommended that the petition b e denied in part and-4-

dismissed in part without prejudice. Cotner filed an objection to the magistrate judge’s report and recommendation, contending only that the state’s postconviction procedures were not adequate and that he had exhausted his claims. Adopting the magistrate judge’s report and recommen dation, the district court construed the petition as raising issues chal lenging the denial of state habeas review and the trial court’s lack of subjectmatter jurisdiction and seeking to incorporate the claims raised in one of his prio r civil rights actions. The district court determined that grounds one, three, four and five alleged at most procedural errors with respect to state habeas or post-convict ion procedures and thus did not state federal constitutional claims cognizable on h abeas. The court noted that the complaint in the civil rights case, No. CIV-94-1783 -T, had been dismissed in part as frivolous. It then found the claims from that c ase that Cotner was trying to incorporate into his petition were without merit an d should be denied. As to the remaining claim, the trial court’s alleged lack of subject matter jurisdiction, the court stated that it was unclear whether Cotner had exhausted this claim in state court. The court determined that there was concurr ent jurisdiction between itself, which has jurisdiction over the facility in which C otner is incarcerated, and the Northern District of Oklahoma, which has jurisdicti on over the county in which Cotner was convicted. See 28 U.S.C. § 2241(d). Concluding that the case wou ld be more appropriately handled in that district, the court dismissed the remaining2 Cotner has filed a variety of briefs and motions in this court. In addressing

his appeal, we will consider matters raised only inhis combined Application for Certificate of Appealability and Opening Brief and the two documents he expressly incorporated into that document, which ar e labeled Petition in Error and Appeal Brief and his Petition for Habeas Corpus. W e decline his request that we assume original jurisdiction over his Petition for Habeas Corpus.

3 In the document labeled Petition for Habeas Corpus, Cotner appears to raise several new claims: ineffective assistance of tria l and appellate counsel; double jeopardy; factual innocence; and mental incompetenc e. The phrase “ineffective assistance of counsel claim” did appear in Cotner’s habeas petition in the district court, but there is no further explanation of this claim, and Cotner did not include it in his stated grounds for relief. Moreover, in restating Cotner’s claim in her report and recommendation, the magistrate judge did not include an ineffective counsel claim, and Cotner did not object to the jud ge’s failure to address this claim. See United States v. One Parcel of Real Property , 73 F.3d 1057, 1060 (10th Cir.), cert. denied , 117 S. Ct. 271 (1996) (failure to object to magis trate judge’s report and recommendation waives right to appeal magistrate judge’s ruling). The other issues were not presented to th e district court at all, and we therefore will not consider them on appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). -5- claim contained in the petition without prejudice t o Cotner’s refiling it in the Northern District. The court also denied a varietyof motions Cotner had filed. On appeal, Cotner contends 2 that it was fundamental error for the district court to dismiss his petition without holding an ev identiary hearing. He contends generally that state post-conviction procedures are inadequate and unconstitutional and that he has exhausted all stat e post-conviction remedies. 3 We agree with the district court that challenges to state post-conviction procedures do not rise to the level of federal cons titutional claims cognizable on habeas. See Hopkinson v. Shillinger , 866 F.2d 1185, 1219-20 (10th Cir. 1989)-6-

(“Even if the state postconviction petition was dis missed arbitrarily, the petitioner can present anew to the federal courts any claim of violation of his federal constitutional rights.”). Cotner does not provide any argument regarding the district court’s denial of the claims previously br ought in case No. CIV-94-1783-T, nor have we even been informed what these claims were. Cotner has thus failed to demonstrate that the district co urt erred in denying these claims. That leaves Cotner’s claim that the trial court lac ked subject matter jurisdiction to convict and sentence him. Althoughthere may be some question over whether Cotner has exhausted this claim, we may “address the merits of unexhausted § 2254 federal habeas corpus claims if they fail, as here, to raise even a colorable federal claim, and if the interest s of justice would be better served by addressing the merits of the habeas petit ion.” Miranda v. Cooper , 967 F.2d 392, 400 (10th Cir. 1992); see also Hoxsie v. Kerby , 108 F.3d 1239, 1242-43 (10th Cir.), cert. denied , 118 S. Ct. 126 (1997). Cotner’s lack of subject matter jurisdiction claim actually contains several sub-claims not necessarily related to subject matte r jurisdiction. Cotner first contends that his Fifth Amendment right to be charg ed only by an indictment issued by a grand jury was violated because he was charged by an information and he did not waive his right to a grand jury indictme nt. However, “the Fifth Amendment right to grand jury indictment does not apply to states,” and Cotner-7-

therefore has no right under the United States Cons titution to a grand jury indictment. Minner v. Kerby , 30 F.3d 1311, 1318 (10th Cir. 1994). Cotner also contends that because he was charged by information , he could be sentenced to no more than twelve months. Even if this state law cl aim could somehow be construed as the denial of a federal constitutional right, it fails as a matter of state law. Oklahoma does not limit the length of sentenc es that may be imposed when the prosecution is commenced based on an informatio n. See, e.g. Johnson v.
State , 476 P.2d 395, 395-96 (Okla. Crim. App. 1970) (rej ecting argument, in case in which defendant was sentenced to seventeen years ’ imprisonment, that conviction was illegal because defendant was charge d by information rather than grand jury indictment); Fesmire v. State , 456 P.2d 573, 583 (Okla. Crim. App. 1969) (under Oklahoma constitution, “prosecutions m ay be by indictment or information as they are alternative modes and . . . a prosection [for a capital offense] by information does not violate either the 14th or 5th amendment of the Constitution of the United States”), vacated in part on other grounds , 408 U.S. 935 (1972). Finally, Cotner contends that under Oklahoma’s 1994 Truth in Sentencing Act, he could not have been sentenced to more than twelve months. Again, even if this state law claim could somehow be construed as the denial of a federal constitutional right, it fails as a matter of state law. The effective date of the-8-

1994 act creating the Oklahoma Truth in Sentencing Policy Advisory Commission, 1994 Okla. Sess. Laws 355, codified at 22 Okla. Stat. tit. 22, §§ 1501-1515, was July 1, 1994, which is obviously after Cotner’s 1992 convictions, and the act is not retroactive. See id. § 1511.E (“Beginning July 1, 1996, when imposing a criminal sentence, the court shall impose the sentence under the sentencing criteria formulated and adopte d pursuant to this section [by the Advisory Commission] if such criteria have beenapproved by the Legislature.”). The Oklahoma Truth in Sentencing A ct was enacted in 1997, see 1997 Okla. Sess. Laws 133, and does not take effect , with exceptions not relevant here, until July 1, 1998. See id. §§ 612, 613. Cotner thus has stated no valid habeas claim based on either of these two acts. We thus conclude that the district court should hav e denied that portion of Cotner’s petition claiming that the trial court lac ked subject matter jurisdiction and related issues, rather than dismissing this portion of the petition without prejudice. We AFFIRM the district court’s order to the extent that it denied portions of Cotner’s habeas petition and denied various othe r motions. We VACATE the court’s order to the extent that it dismissed in part the petition without prejudice,-9-

and we REMAND the case to the district court with d irections to enter an order denying the petition in its entirety. All pending motions are DENIED. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay Circuit Judge