*This order and judgment is not binding precedent, except under the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

JUN 7 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HAROLD DEAN COOKSEY,

Petitioner-Appellant,

v.

RON CHAMPION, Warden; L. L.

YOUNG,

Respondents-Appellees.

No. 99-5008

(N. District of Oklahoma)

(D.C. No. 95-CV-1141-E)

ORDER AND JUDGMENT*

Before TACHA, McKAY, and MURPHY, 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.
1Cooksey filed his original § 2254 petition on May 10, 1995, well before

the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Thus, the AEDPA’s revised standards of review and certificate-ofappealability requirements do not apply. See Lindh v. Murphy, 521 U.S. 320

(1997); United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997). 

Nevertheless, Cooksey must still obtain a CPC under pre-AEDPA law in order to

appeal the district court’s denial of his § 2254 habeas petition. See 28 U.S.C. §

2253 (1994) (“An appeal may not be taken to the court of appeals from the final

order in a habeas corpus proceeding where the detention complained of arises out

of process issued by a State court, unless the justice or judge who rendered the

order or a circuit justice or judge issues a certificate of probable cause.”).

 

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This case is before the court on pro se petitioner Harold D. Cooksey’s

application for a certificate of probable cause (“CPC”). Cooksey seeks a CPC so

that he can appeal the district court’s denial of his 28 U.S.C. § 2254 petition. See

28 U.S.C. § 2253 (1994).1 Because Cooksey has not made a substantial showing

of the denial of a federal right, this court denies Cooksey’s request for a CPC and

dismisses this appeal.

The district court meticulously set out the complicated procedural history

surrounding this case. This court will not repeat that task. Instead, for purposes

of this appeal, it is sufficient to note that Cooksey was convicted 1993 in

Oklahoma state court of one count of Larceny of Merchandise from a Retailer,

After the Former Conviction of Two or More Felonies, and one count of Incurring

Bail Forfeiture, After the Former Conviction of Two or More Felonies. In federal

district court, Cooksey raised the following five challenges to the validity of his
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larceny and bail forfeiture convictions: (1) his convictions were improperly

enhanced by a constitutionally invalid Texas felony conviction; (2) the state trial

court erred in allowing the state to introduce prior misdemeanor convictions in the

larceny case and in failing to give the jury a limiting instruction on the use of the

misdemeanors; (3) the state failed to put Cooksey on notice that it was relying on

misdemeanor convictions to revitalize otherwise “stale” felony convictions; (4)

the state trial court erred when it allowed the state to present evidence concerning

a dismissed charge that was part of the same transaction as one of the predicate

felonies; and (5) the evidence was insufficient to support the conviction for

incurring bail forfeiture.

In two thorough orders, the district court denied relief. As to Cooksey’s

claim regarding the validity of his Texas felony, which felony was apparently

used to enhance both his larceny and bail forfeiture convictions, the district court

concluded that it was procedurally barred from addressing the merits of the claim

because Cooksey had failed to raise it on direct appeal to the Oklahoma Court of

Criminal Appeals (“OCCA”). After further briefing, the district court further

concluded that Cooksey had failed to demonstrate that his failure to raise the

claim was excused by cause and prejudice or that review of the claim on the

merits was necessary to prevent a fundamental miscarriage of justice. With

regard to Cooksey’s second and fourth claims, the district court noted that
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Cooksey’s challenges centered exclusively on whether the OCCA had

misinterpreted state law in affirming Cooksey’s conviction. As noted by the

district court, § 2254 does not empower federal courts to review a state court’s

interpretation or application of its own laws. See Lujan v. Tansy, 1031, 1036 (10th

Cir. 1993). The district court rejected Cooksey’s third claim, whether Cooksey

had sufficient notice that the state intended to use his misdemeanors to revive

stale felony convictions, as not supported by the record. According to the district

court, it was readily apparent from the charging documents that the state would

present intervening misdemeanors to revive the stale felonies. Finally, the district

court rejected Cooksey’s fifth claim, concluding that the record contained more

than sufficient evidence from which a rational juror could conclude that Cooksey

had willfully failed to appear at his preliminary hearing.

This court has undertaken a thorough review of Cooksey’s application for a

CPC and appellate brief, the district court orders denying relief, and the entire

record on appeal. That close review demonstrates that the district court’s

resolution of Cooksey’s claims is not reasonably debatable, subject to a different

resolution on appeal, or deserving of further proceedings. Barefoot v. Estelle,

463 U.S. 880, 883 n.4 (1983). Accordingly, Cooksey is not entitled to a CPC. Id.

Cooksey’s request for a CPC is hereby DENIED for substantially those reasons
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set out in the district court’s orders dated December 5, 1997 and December 15,

1998. Cooksey’s appeal is therefore DISMISSED.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge