* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Cooksey filed his original § 2254 petition on May 1 0, 1995, well before

the enactment of the Antiterrorism and Effective De ath 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 underpre-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 cou rt 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 just ice or judge who rendered the order or a circuit justice or judge issues a certif icate of probable cause.”).

-2- This case is before the court on pro se petitioner Harold D. Cooksey’s application for a certificate of probable cause (“C PC”). Cooksey seeks a CPC so that he can appeal the district court’s denial of h is 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253 (1994). 1 Because Cooksey has not made a substantial showin g 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 complic ated procedural history surrounding this case. This court will not repeat that task. Instead, for purposes of this appeal, it is sufficient to note that Cooks ey was convicted 1993 in Oklahoma state court of one count of Larceny of Mer chandise 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 c hallenges to the validity of his-3-

larceny and bail forfeiture convictions: (1) his co nvictions were improperly enhanced by a constitutionally invalid Texas felonyconviction; (2) the state trial court erred in allowing the state to introduce prio r misdemeanor convictions in the larceny case and in failing to give the jury a limi ting instruction on the use of the misdemeanors; (3) the state failed to put Cooksey o n notice that it was relying on misdemeanor convictions to revitalize otherwise “st ale” 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 transa ction 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 r elief. As to Cooksey’s claim regarding the validity of his Texas felony, w hich felony was apparently used to enhance both his larceny and bail forfeitur e convictions, the district court concluded that it was procedurally barred from addr essing the merits of the claim because Cooksey had failed to raise it on direct ap peal to the Oklahoma Court of Criminal Appeals (“OCCA”). After further briefing, the district court further concluded that Cooksey had failed to demonstrate th at his failure to raise the claim was excused by cause and prejudice or that re view 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 d istrict court noted that-4-

Cooksey’s challenges centered exclusively on whethe r the OCCA had misinterpreted state law in affirming Cooksey’s con viction. As noted by the district court, § 2254 does not empower federal cou rts to review a state court’s interpretation or application of its own laws. See Lujan v. Tansy , 1031, 1036 (10 th Cir. 1993). The district court rejected Cooksey’s third claim, whether Cooksey had sufficient notice that the state intended to us e his misdemeanors to revive stale felony convictions, as not supported by the r ecord. According to the district court, it was readily apparent from the charging do cuments that the state would present intervening misdemeanors to revive the stal e felonies. Finally, the district court rejected Cooksey’s fifth claim, concluding th at the record contained more than sufficient evidence from which a rational juro r could conclude that Cooksey had willfully failed to appear at his preliminary h earing. This court has undertaken a thorough review of Cook sey’s application for a CPC and appellate brief, the district court orders denying relief, and the entire record on appeal. That close review demonstrates t hat the district court’s resolution of Cooksey’s claims is not reasonably de batable, subject to a different resolution on appeal, or deserving of further proce edings. Barefoot v. Estelle , 463 U.S. 880, 883 n.4 (1983). Accordingly, Cookseyis not entitled to a CPC. Id. Cooksey’s request for a CPC is hereby DENIED for substantially those reasons-5-

set out in the district court’s orders dated Decemb er 5, 1997 and December 15, 1998. Cooksey’s appeal is therefore DISMISSED

. ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge