We liberally construe Brazille’s pro se pleadings. See Ledbetter v. City of 1

Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

F I LED

United States Court of Appeals

Tenth Circuit

July 28, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAMERON C. BRAZILLE,

Petitioner - Appellant,

v.

GLYNN BOOHER, Warden,

Respondent - Appellee.

No. 05-7049

(E.D. Oklahoma)

(D.Ct. No. CIV-02-440-S)

ORDER DENYING LEAVE TO PROCEED

ON APPEAL IN FORMA PAUPERIS, 

DENYING CERTIFICATE OF APPEALABILITY,

AND DISMISSING APPLICATION

Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Cameron C. Brazille, a state inmate appearing pro se, seeks a certificate of 1

appealability (COA) allowing him to appeal from the district court’s denial of his
 Brazille never filed a request for a COA with the district court but did file a 2

notice of appeal, which is construed as a request for a COA. FED. R. APP. P. 22(b);

Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir. 1997). The district court never ruled on

the COA issue. “Under our Emergency General Order of October 1, 1996, we deem the

district court’s failure to issue a [COA] within thirty days after filing the notice of appeal

as a denial of the certificate.” United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th

Cir. 2000).

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petition for writ of habeas corpus under 28 U.S.C. § 2254 . Because Brazille has 2

failed to make “a substantial showing of the denial of a constitutional right” as

required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss his application.

On August 17, 1999, Brazille and Brenda Conard attempted to cash two

stolen checks at Harp’s Foods Store in Fort Gibson, Oklahoma. They left the

store in a pickup truck driven by another male. When the arresting officer

stopped the pickup truck, the officer discovered a third stolen check on Brazille’s

person. Brazille was arrested and charged in Oklahoma state court with two

counts of uttering a forged instrument (Counts 1 and 3) and three counts of

knowingly concealing stolen property (Count 2, 4-5). The jury found him guilty

on all five counts. The trial judge merged the three counts of knowingly

concealing stolen property into one count, Count 2, and sentenced Brazille to

three concurrent twenty year periods of imprisonment. Brazille appealed to the

Oklahoma Court of Criminal Appeals (OCCA), which affirmed the conviction. 

He also filed a petition for post-conviction relief in state court which was denied;

his appeal from that denial was unsuccessful.
 In his appellate brief, Brazille claims the district court failed to address his 3

argument that the state trial judge exceeded his authority by dismissing the jury prior to

the penalty phase. The reason the district court did not address the argument is that he

raised it for the first time in his objections to the magistrate judge’s report and

recommendation. Moreover, Brazille failed to exhaust his state court remedies on this

claim. Nevertheless, the record shows that Brazille stipulated for purposes of sentencing

that he had two or more prior felony convictions. Consequently, no further fact-finding

was necessary.

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On August 16, 2002, Brazille filed a § 2254 petition in the United States

District Court for the Eastern District of Oklahoma. In this petition, Brazille

raised the following grounds for relief: (1) the stolen check found on his person

(which was the basis for Count 5) should have been suppressed under the Fourth

Amendment because it was the fruit of an unlawful search; (2) his sentence is

excessive because no harm resulted from the offense; (3) he should not be held

liable for the check Conard attempted to cash (Count 1) and insufficient evidence

was presented that he aided and abetted her; (4) trial counsel was ineffective for

failing to have Count 1 suppressed and to investigate the charges; (5) his double

jeopardy rights were violated because he was charged with multiple crimes and

received multiple sentences for a single act; (6) the testimony of the arresting

officer and the owner of the stolen checks was not credible; and (7) the evidence

was insufficient that he was the male individual who presented the checks at the

store and in fact, it was the driver of the truck who presented the checks at the

store. In a thorough analysis, the magistrate judge rejected these claims on the 3

merits. The district court agreed with the magistrate and denied Brazille’s § 2254
 On appeal, Brazille claims the district court did not timely address his § 2254 4

petition. Because Brazille’s petition was properly denied, any delay in its resolution was

not prejudicial.

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petition.

 We have thoroughly reviewed the entire record, which includes the

transcripts of Brazille’s trial, and the relevant authority. For substantially the

same reasons relied upon by the magistrate, we cannot say “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 4

484 (2000) (quotations omitted). Therefore, Brazille’s request for a COA is

DENIED and his application is DISMISSED. Because Brazille has not shown

“the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal,” his request to proceed in forma pauperis

on appeal is DENIED. DeBardeleben v. Quinlan, 937 F.2d 502 , 505 (10th Cir.

1991).

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge