*

 The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. 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judgment is not binding precedent, except under the doctrines of law of the case,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

AUG 20 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREGORY D. WILLIAMS,

Petitioner - Appellant,

v.

KEN KLINGER; STATE OF

OKLAHOMA,

Respondent - Appellee.

No. 98-6206

(D.C. No. 98-CV-63-M)

(Western District of Oklahoma)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY and LUCERO , Circuit Judges.

Gregory Williams filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254, challenging the legality of two sentences imposed by an Oklahoma

state court. The federal district court, adopting the magistrate’s Report and

Recommendation, denied the petition. We take jurisdiction pursuant to 28 U.S.C.

§ 2253(a), and affirm.
1

 We note that petitioner challenges only whether § 51 was applicable, not

whether the sentences imposed were excessive.

- 2 -

Petitioner pleaded guilty in 1997 to two counts of obtaining merchandise

and/or money by a false and bogus check in violation of Okla. Stat. Ann., tit. 21,

§ 1541.2 (Supp. 1998) (amended 1997) (effective until July 1, 1998). Although

this felony carried a maximum sentence of one year in the county jail at the time

petitioner was convicted, see id., he had previously been convicted of two

felonies and the state court enhanced his sentence pursuant to Okla. Stat. Ann.,

tit. 21, § 51 (Supp. 1998) (repealed 1997) (effective until July 1, 1998). Section

51 provided, at the time of petitioner’s conviction, that “[e]very person who,

having been twice convicted of felony offenses, commits a third, or thereafter,

felony offenses . . . shall be punished by imprisonment in the State Penitentiary

for a term of not less than twenty (20) years.” Id. § 51(B). Williams was

eventually sentenced to two concurrent terms of 40 years for his crimes.

Before us, petitioner contends that the state court was without jurisdiction

to enhance his convictions. 1 In support of this position, he points to language in §

51, which provides that a second conviction may be enhanced so long as the first

offense and the offense of conviction are “punishable by imprisonment in the

State Penitentiary.” Id. § 51(A). Because the offenses he pleaded guilty to were,

at the time, punishable only by imprisonment in the county jail, petitioner argues
- 3 -

that the application of § 51 to enhance his sentences was improper. We must

disagree.

As both the federal district court and the magistrate judge correctly noted, §

51(B) and not § 51(A) is applicable to petitioner. Williams does not deny that he

had at least two felony convictions prior to pleading guilty to violations of §

1541.2. In addition, the language of § 1541.2 clearly states that “any person

convicted pursuant to this section shall be guilty of a felony.” Okla. Stat. Ann.,

tit. 21, § 1541.2 (Supp. 1998) (amended 1997) (effective until July 1, 1988). 

Because § 51(B) requires only that the offense of conviction be a felony, it was

appropriately applied. See Walker v. State , 953 P.2d 354, 356 (Okla. Crim. App.

1998) (noting that, although enhancement of punishment with one prior

conviction requires that offense be punishable by imprisonment in penitentiary, no

such requirement exists when defendant has two prior qualifying convictions).

We GRANT petitioner’s application for a certificate of appealability, see

28 U.S.C. § 2253(c), as well as his motion to proceed in forma pauperis, and

AFFIRM the district court’s order denying the habeas petition.
- 4 -

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge