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

determined unanimously that oral argument would not materially 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 without oral argument. This

Order and Judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. The 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 Manslaughter brought by the state of

Oklahoma. A few days after entering his plea, on September 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, and his motion was twice denied
1The 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 intends

to urge on appeal that a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant must include 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 order on this issue, but that no

appeal was filed for three months because his attorneys ignored his instruction on

the matter. (Aplt. Br. Ex. F (“Motion in Support of Petitioners [sic] Objection to

State’s Response”)). The state court found the appeal was not timely and

dismissed, and Jaquez filed a motion for state post-conviction relief centering on

a variety of instances of alleged ineffective assistance 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 grounds 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 exculpatory 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 court’s order under

Fed. R. Civ. P. 59(e) and filed timely notice of appeal. Because of the pending

Rule 59(e) motion, this court initially lacked jurisdiction 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 showing him a photograph of a

cut on the defendant’s leg made by the medical examiner 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. (Magistrate’s Report and

Recommendation; 5) The district court, adopting findings presented in a

magistrate judge’s report and recommendation, dismissed his petition.2

 (Order

7/28/00.)

For substantially the reasons stated in the magistrate judge’s report and

recommendation and the district court’s order, we hold that Jaquez has

procedurally defaulted his claims by failing to timely appeal the denial of postconviction relief, and we therefore DENY Jaquez a certificate of appealability and

DISMISS his petition. 

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge