* The case is unanimously ordered submitted withoutoral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 habea s corpus pursuant to 28 U.S.C. § 2254, challenging the legality of two sent ences imposed by an Oklahoma state court. The federal district court, adopting the magistrate’s Report and Recommendation, denied the petition. We take juris diction pursuant to 28 U.S.C. § 2253(a), and affirm.1 We note that petitioner challenges only whether § 5 1 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 unt il 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 Ann., tit. 21, § 51 (Supp. 1998) (repealed 1997) (effecti ve until July 1, 1998).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, com mits a third, or thereafter, felony offenses . . . shall be punished by imprison ment 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 courtwas without jurisdiction to enhance his convictions. 1 In support of this position, he points to languag e in § 51, which provides that a second conviction may be enhanced so long as the first offense and the offense of conviction are “punishab le by imprisonment in the State Penitentiary.” Id. § 51(A). Because the offenses he pleaded guilty t o were, at the time, punishable only by imprisonment in the county jail, petitioner argues- 3 -

that the application of § 51 to enhance his sentenc es 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 pleadi ng guilty to violations of § 1541.2. In addition, the language of § 1541.2 clea rly 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) (effe ctive until July 1, 1988). Because § 51(B) requires only that the offense of c onviction 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 punishm ent with one prior conviction requires that offense be punishable by i mprisonment in penitentiary, no such requirement exists when defendant has two prio r 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 proce ed in forma pauperis, and
AFFIRM the district court’s order denying the habeas peti tion.- 4 -

The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge