F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 30 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD RAY WILSON,
Petitioner-Appellant,
No. 97-6019
v. (W. District of Oklahoma)
(D.C. No. 96-CV-396)
STEVE HARGETT, Warden,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.
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. Therefore, the case is
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This order and judgment is not binding precedent, except under the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.
Petitioner Donald Ray Wilson requests a certificate of appealability to
appeal the district court’s denial of his petition for writ of habeas corpus under 28
U.S.C. § 2254. We conclude Wilson is not entitled to a certificate of
appealability and dismiss the appeal.
Wilson was convicted by jury in the District Court of Garvin County,
Oklahoma, of first degree murder and assault and battery with a dangerous
weapon, and was sentenced to imprisonment for terms of life and fifty years,
respectively. Wilson appealed his convictions to the Oklahoma Court of Criminal
Appeals, and his convictions were affirmed in a summary opinion. Wilson’s
application for post-conviction relief filed in the District Court of Garvin County
was denied, and his appeal of the denial was affirmed on the grounds of
procedural default. See Okla. Stat. Ann. tit. 22, § 1086 (West 1986) (setting forth
Oklahoma rule of procedural default).
Having exhausted his state remedies, Wilson filed a § 2254 petition for writ
of habeas corpus in federal district court, claiming (1) the state failed to prove the
elements of first degree murder; (2) the trial court erred in admitting unreliable
identification testimony; (3) the state failed to prove the elements of assault and
battery with a deadly weapon, and (4) his trial and appellate counsel were
ineffective in failing to raise these issues.
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The magistrate judge determined that issues one and two were properly
denied in the state court habeas proceedings because they were not raised in the
initial, direct appeal. As the district court correctly noted, federal habeas review
of such procedurally barred issues is foreclosed “unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). Wilson asserts that ineffectiveness of counsel constituted cause
for his procedural default. In considering the ineffectiveness of counsel claim,
the district court considered the merits of issues one, two, and three in order to
make a determination of whether Wilson’s counsel erred in failing to raise the
issues at trial or on direct appeal. The court found each of the issues meritless.
The court therefore found that the ineffectiveness of counsel claim was also
meritless and did not constitute cause for procedural default. Having considered
and rejected each of the issues raised in the petition, the court dismissed the
petition. The district court also denied Wilson’s application for a certificate of
appealability. In his certificate of appealability application to this court, Wilson
reasserts the issues raised in his petition below.
Under 28 U.S.C. § 2253, Wilson’s appeal may not be considered unless a
certificate of appealability is issued. A certificate of appealability will be issued
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only if the issues raised are debatable among jurists of reason, if a court could
resolve the issues differently, or if the questions presented are deserving of
further proceedings. See Lennox v. v. Evans, 87 F.3d 431, 434 (10th Cir. 1996).
For substantially the same reasons set forth in the magistrate’s Recommendation
of July 31, 1996, and the district court’s Order of January 2, 1997, we agree with
the district court that Wilson cannot satisfy this burden and is not entitled to a
certificate of appealability.
Wilson’s application for a certificate of appealability is DENIED and this
appeal is DISMISSED.
ENTERED FOR THE COURT,
Michael R. Murphy
Circuit Judge
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