Professional Documents
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MAR 5 2001
PATRICK FISHER
Clerk
No. 00-6311
(W. District of Oklahoma)
(D.C. No. CIV-00-810-R)
Defendant-Appellant.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the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.
*
This case is before the court on Drucilla Bakers notice of appeal, which
this court construes as a request for a certificate of appealability (COA), 1 and
request to proceed on appeal in forma pauperis. 2 Baker needs a COA in order to
appeal the district courts denial of her 28 U.S.C. 2255 petition. See 28 U.S.C.
2253(c)(1)(B). Because this court concludes that Baker has not made a
substantial showing of the denial of a constitutional right, see id. 2253(c)(2),
we deny her requests for a COA and to proceed in forma pauperis and dismiss
the appeal.
A jury convicted Baker of one count of conspiracy to possess with intent to
distribute and conspiracy to distribute methamphetamine, three counts of
possession with intent to distribute methamphetamine, and two separate counts
See Fed. R. App. P. 22(b)(2) (If no express request for a [COA] is filed,
the notice of appeal constitutes a request addressed to the judges of the court of
appeals.).
1
Baker filed her opening brief on appeal on November 27, 2000. On that
same date, she filed a separate brief styled as a Supplemental Opening Brief,
along with a motion for leave to file the supplemental brief. Upon review of the
proposed supplemental brief, it is apparent Baker thought, erroneously, that she
was obligated to ask permission to file the brief because it raises an issue that was
not raised before the district court,
i.e. , an assertion that she was tried and
sentenced in a manner at odds with the Supreme Courts recent decision in
Apprendi v. New Jersey , 120 S. Ct. 2348 (2000). Taken together, Bakers opening
brief and supplemental brief are well within the page limitations set out in Fed. R.
App. P. 32(a)(7). We, therefore, consider both briefs as a consolidated principal
brief and deny as moot the motion to file a supplemental brief. Of course, as set
forth more fully below, this courts decision to treat Bakers opening and
supplemental brief as one principal brief does not mean that the
Apprendi issue
set forth in the supplemental brief is properly before the court.
2
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dated August 18, 2000. Her request to proceed on appeal in forma pauperis is
likewise DENIED. This appeal is, therefore, DISMISSED. See 28 U.S.C.
2253(c).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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