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Date: Filed /
UNITED STATES COURT OF APPEALS
Before HARTZ, EBEL and TYMKOVICH,
Petitioner-Appellant Richard Lynn Dopp appeals the district court's order
denying him habeas relief, see 28 U.S.C. 2254, from his Oklahoma convictions
for trafficking in marijuana, maintaining a residence resorted to by users of a
controlled dangerous substance, and unlawful possession of a firearm.(*) For these
convictions, Dopp was sentenced to life imprisonment without parole. On
to this court, Dopp argues that the district court erred in rejecting his claims that
(1) the Oklahoma Court of Criminal Appeals ("OCCA") failed to provide a full
and fair opportunity to litigate his Fourth Amendment challenge to the search of
his residence; (2) the trial court failed to instruct the jury on the lesser offense of
possession with intent to distribute; (3) the trial court erroneously instructed the
jury that Dopp had stipulated to two prior convictions for purposes of sentence
enhancement; (4) Dopp's trial counsel was ineffective in failing to object to the
allegedly erroneous jury instructions; and (5) the trial court's sentence of life in
prison without parole violated Double Jeopardy based on Dopp's prior payment
of impoundment fees and the loss of a truck seized during the search of his
residence. Dopp also claims that the district court erred by (6) failing to provide
an evidentiary hearing regarding Dopp's ineffective assistance of counsel claims,
and (7) denying his application for a certificate of appealability. Finally, Dopp
asserts that (8) cumulative error analysis should be applied to all of the foregoing
To pursue this appeal, Dopp is required to obtain a certificate of
appealability (COA). See 28 U.S.C. § 2253(c)(1). To be entitled to a COA,
Dopp must make a "substantial showing of the denial of a constitutional right."
Id. § 2253(c)(2). Satisfaction of this standard requires establishing that
"reasonable jurists could debate whether (or for that matter, agree that) the
petition should have been resolved [by the district court] in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further." Slack, 529 U.S. at 484 (quotations omitted). The district court in this
case denied Dopp's motion for a COA.
After carefully considering all of Dopp's arguments, we conclude that he
has failed to demonstrate that he is entitled to a COA. We therefore DENY Dopp
a COA and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Click footnote number to return to corresponding location in the text.
*.Dopp previously sought habeas relief under
2254 as to the same
convictions. His prior 2254 petition, however, was dismissed without prejudice
based on failure to exhaust state remedies. See Dopp v. Saffle, No. 99-CV-884
(N.D. Okla. Apr. 18, 2001) (unpublished order). Dismissal without prejudice for
failure to exhaust state remedies does not prevent a subsequent habeas petition
under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Slack
v. McDaniel, 529 U.S. 473, 485-86 (2000); McWilliams v. Colorado, 121 F.3d
573, 575 (10th Cir. 1997).
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