Ott v. Kaiser

ORDER AND JUDGMENT * HENRY, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determina [830] tion of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The ease is therefore ordered submitted without oral argument. Kevin Andrew Ott, a state prisoner proceeding pro se, seeks to appeal the district court’s order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In order to receive a certifícate of appealability, Mr. Ott must make “a substantial showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). He may make this showing by demonstrating that the issues that he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Mr. Ott was convicted of the following offenses in the District Court of Cleveland County, Oklahoma: (1) trafficking in illegal drugs, a violation of Okla. Stat. tit. 63, § 2-415; (2) maintaining a dwelling house to keep or sell a controlled drug, a violation of Okla. Stat. tit. 63, § 2-404(A)(6); (3) possessing a firearm in the commission of a felony, a violation of Okla. Stat. tit. 21, § 1287; (4) failure to display a tax stamp, a violation of Okla. Stat. tit. 68, § 450.8; and (5) unlawful possession of paraphernalia, a violation of Okla. Stat. tit. 63, § 2-405(B). The Cleveland County District Court imposed the following sentences with respect to each offense: (1) a fine of $ 175,000 and life imprisonment without the possibility of parole; (2) a fine of $10,000 and five years’ imprisonment; (3) twenty years’ imprisonment; (4) a fine of $10,000 and twenty years’ imprisonment; and (5) a fine of $1,000 and one year’s imprisonment. Mr. Ott appealed, and the Oklahoma Court of Criminal Appeals affirmed his conviction. See Ott v. State, 967 P.2d 472 (Okla.Crim.App.1998). Mr. Ott now challenges his conviction and sentence on the following grounds: (1) that his sentence of life without parole is excessive, in violation of the Eighth Amendment; (2) that the trial court violated his due process rights by failing to instruct on a lesser included offense of the trafficking count; (3) that the trial court erred in denying to suppress on Fourth Amendment grounds evidence obtained through a warrantless search of a mobile home owned by his mother; (4) that there was insufficient evidence to support the firearm conviction; (5) that there was insufficient evidence to support the conviction for maintaining a dwelling house to keep or sell a controlled drug; (6) that the trial court erred in relying on two Arkansas convictions to enhance his sentence because they did not involve separate and distinct transactions; (7) that the trial court erred in relying on the Arkansas convictions because the prosecution failed to introduce certified copies of them; and (8) that the trial court erred in allowing the prosecution to amend the information prior to the sentencing stage of the trial. In a report and recommendation, a magistrate judge recommended that Mr. Ott’s petition be denied. See Rec. doc. 28 (report and recommendation, filed Dec. 22, 2000). Mr. Ott objected to the report and recommendation, but the district court overruled Mr. Ott’s objections and denied his petition. See id. doc. 32 (district court order, filed Feb. 16, 2001). In his appellate brief, Mr. Ott repeats arguments that have been fully considered and properly analyzed by the magistrate judge and the district court. Upon review of the record and the applicable law, we therefore DENY Mr. Ott’s application for a certificate of appealability and DISMISS this appeal for substantially the same rea [831] sons set forth by the magistrate judge and the district court. Footnotes [*] 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.