OpenJurist

993 F2d 1551 Bias v. R Cody

993 F.2d 1551

Thomas Andrew BIAS, Plaintiff-Appellant,
v.
R. Michael CODY and Attorney General of the State of
Oklahoma, Defendants-Appellees.

No. 92-5190.

United States Court of Appeals, Tenth Circuit.

May 11, 1993.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER,* District Judge.

ORDER AND JUDGMENT**

JOHN P. MOORE, Circuit Judge.

1

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Petitioner Thomas Andrew Bias appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

3

In 1975, petitioner was convicted of first degree murder and sentenced to death. His conviction was affirmed on appeal, but his sentence was commuted to life imprisonment. See Bias v. State, 561 P.2d 523 (Okla.Crim.App.), cert. denied, 434 U.S. 940 (1977). Petitioner was denied relief on several state post-conviction actions. He then commenced this action in federal district court.

4

In his federal habeas petition, petitioner alleged that the juvenile court's certification of him as an adult and his subsequent prosecution as an adult constituted double jeopardy citing to Breed v. Jones, 421 U.S. 519 (1975). Petitioner also alleged his conviction was the result of an erroneous jury instruction, he is serving an unlawful sentence, the introduction of evidence of other crimes was error, and he was denied the right to present all available evidence.

5

The district court denied petitioner relief adopting the magistrate judge's recommendation. The magistrate judge determined that petitioner was procedurally barred from raising his first three issues. The magistrate judge held that petitioner's remaining two claims were questions of state law not within the scope of federal habeas review.

6

Upon review of the parties' briefs on appeal, the record, and the applicable law, we affirm the district court's order for substantially the reasons stated in the magistrate judge's report and recommendation of May 11, 1992.

7

The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

*

Honorable G. Thomas Van Bebber, District Judge, United States District Court for the District of Kansas, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3