* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### FEB 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUDY PHIL JAQUEZ, Petitioner-Appellant, v. STATE OF OKLAHOMA, Respondent-Appellee. No. 00-6272 (D.C. No. 99-CV-1982-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.
Petitioner-Appellant Rudy Phil Jaquez (“Jaquez”) entered a plea of nolo contendere to a charge of First Degree Manslaughterbrought by the state of Oklahoma. A few days after entering his plea, on S eptember 18, 1998, Jaquez told the court his plea was the result of coercion by his two court-appointed attorneys. He twice moved to withdraw the plea, an d his motion was twice denied1 The record does not contain the OCCA’s dismissal of the appeal of Jaquez’s motion for post-conviction relief. Thus, we must accept the conclusion that the OCCA dismissed his appeal from the denial of state post-conviction relief because it was untimely. See Fed. R. App. P. 10(b)(2) (“If the appellant intend s to urge on appeal that a finding or conclusion is u nsupported by the evidence or is contrary to the evidence, the appellant must includ e in the record a transcript of all evidence relevant to that finding or conclusion .”) - 2 - after hearings before the state trial court. (Aplt

. Br. Ex. F.) Jaquez alleges he told the court he intended to appeal its second ord er on this issue, but that no appeal was filed for three months because his attor neys ignored his instruction on the matter. (Aplt. Br. Ex. F (“Motion in Support of Petitioners [sic] Obj ection to State’s Response” )). The state court found the appeal was not timel y and dismissed, and Jaquez filed a motion for state post -conviction relief centering on a variety of instances of alleged ineffective assis tance of counsel. (Application for Post-Conviction Relief , passim .) An Oklahoma District Court denied his application in an order handed down on November 16, 1999. (Order 11/19/99). Jaquez filed notice of appeal on November 30, 1999, but the Oklahoma Court of Criminal Appeals (“OCCA”) dismissed the appeal on g rounds of waiver and timeliness. (Motion in Request to be Granted Leave to File Supplemental Brief , filed 12/3/99) 1 Jaquez then filed a federal petition for habeas corpus under 28 U.S.C. § 2254 alleging that (1) prosecutors withheld excul patory evidence; (2) he was shown a falsified report from a medical examiner to coerce him into confessing;2 Jaquez simultaneously moved to amend the district c ourt’s order under

Fed. R. Civ. P. 59(e) and filed timely notice of ap peal. Because of the pending Rule 59(e) motion, this court initially lacked juri sdiction to appeal. Jaquez’s subsequent motion to withdraw his motion, however, cured this deficiency and we dispose of his case on the merits. Cf. Production Credit Ass’n v. Alamo Ranch Co. , 989 F.2d 413, 416-17 (10th Cir. 1993) (premature filing of notice of appeal ripened upon entry of final judgment). - 3 - (3) his attorneys coerced him into confessing by sh owing him a photograph of a cut on the defendant’s leg made by the medical exam iner and characterizing it as a defensive wound; (4) his attorneys failed to carry out his request to appeal the denial of his motion to withdraw his plea. (Magistr ate’s Report and Recommendation ; 5) The district court, adopting findings present ed in a magistrate judge’s report and recommendation, dismi ssed his petition. 2 (Order 7/28/00.) For substantially the reasons stated in the magistr ate judge’s report and recommendation and the district court’s order, we h old that Jaquez has procedurally defaulted his claims by failing to tim ely appeal the denial of postconviction relief, and we therefore DENY Jaquez a c ertificate of appealability and DISMISS his petition. ENTERED FOR THE COURT

David M. Ebel Circuit Judge