F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 15 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL TERRENCE OLIVER,
Petitioner - Appellant,
No. 98-5257
v.
(D.C. No. 97-CV-247-K)
(Northern District of Oklahoma)
RITA MAXWELL, Warden,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Petitioner Michael Terrance Oliver, pro se, seeks a certificate of
appealability, pursuant to 28 U.S.C. § 2253(c), to appeal the district court’s denial
of his petition for a writ of habeas corpus under § 2254. Because we conclude
that Oliver has not made “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss
this appeal.
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Oliver is a state inmate in the custody of the Oklahoma Department of
Corrections, serving two concurrent twenty-year sentences imposed after he
entered a plea, while represented by counsel, of no contest to charges of
Possession of Marijuana; Second Offense After Former Conviction of a Felony;
and Unlawful Delivery of Marijuana After Former Conviction of a Felony. Oliver
did not file a timely direct appeal of these convictions and sentences. He did,
however, file an application for state post-conviction relief, arguing that the trial
court lacked jurisdiction to sentence him because his enhanced sentences were not
properly allowed by statute. The state district court denied Oliver’s application.
The Oklahoma Court of Criminal Appeals affirmed the denial of post-conviction
relief, finding that Oliver had failed to raise his claims on direct appeal and failed
“to articulate sufficient reason or special circumstances explaining his failure” to
do so. R. Doc. 1 at 15, Oliver v. Tulsa County, No. PC 96-1350 (Okla. Crim.
App. Feb. 6, 1997) (Order Affirming Denial of Post-Conviction Relief at 2).
Oliver then filed a petition for a writ of habeas corpus in federal district
court, pursuant to 28 U.S.C. § 2254. The district court denied Oliver’s
application without an evidentiary hearing, concluding that by failing to seek
timely direct review in Oklahoma state court, he had procedurally defaulted his
claims. The district court found that the Oklahoma Court of Criminal Appeals
had applied the independent and adequate state doctrine of barring claims on post-
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conviction not raised on direct appeal, and that Oliver had not shown that failure
to consider his claims would result in a fundamental miscarriage of justice. See
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Oliver does not argue that the Oklahoma procedural bar applied is not
independent of federal law, see Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.
1995), or that it is not adequately and consistently applied in Oklahoma courts,
see id. Rather, he argues that the federal courts should look past the procedural
bar to reach the merits of his claim on the grounds of “actual or factual
innocence.” Appellant’s Br. at 2A.
If a state prisoner has defaults his federal claims in state court pursuant to
an independent and adequate state procedural rule, federal habeas review of his
claims 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, 501 U.S. at 540. Oliver does not allege cause
and prejudice, but rather apparently invokes the fundamental miscarriage of
justice exception by arguing that a claim of actual innocence justifies looking past
his procedural default. A claim of actual innocence, in the procedural context, is
“not itself a constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim considered
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on the merits.” Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera v.
Collins, 506 U.S. 390, 404 (1993)). In Schlup, the Court considered a procedural
claim of actual innocence in considering the “fundamental miscarriage of justice”
exception to the pre-AEDPA rule on second and successive habeas petitions. See
Schlup, 513 U.S. at 321. It concluded, in the context of a challenge to a capital
sentence, that a petitioner may secure federal review of the merits of a
procedurally barred claim by showing that “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at
327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
The Supreme Court in Schlup was faced with a challenge to a capital
sentence. We assume, without deciding, that its actual innocence standard of
review may apply to claims of actual innocence of a conviction under a habitual
offender statute. See United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.
1993) (stating that “a person cannot be actually innocent of a noncapital
sentence”); but see Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994) (stating,
in dicta, that a person is actually innocent of a habitual offender sentence if he is
innocent of a prior conviction). We need not resolve, however, the scope of the
actual innocence doctrine in the context of non-capital habitual offender
sentencing, because we agree with the district court that Oliver has failed even to
raise colorable allegations of factual innocence as to the underlying grounds of
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his sentence enhancements. Oliver’s claims amount to an argument that the trial
court imposed the incorrect (non-capital) sentence under state law. He fails to
provide any concrete support for this argument, and thus does not carry his burden
of showing a fundamental miscarriage of justice. Thus, the district court properly
applied the doctrine of procedural default to foreclose review of Oliver’s claims.
Therefore, we conclude that Oliver has failed to make a substantial showing
of the denial of a constitutional right. The request for a certificate of
appealability is hereby DENIED; this appeal is DISMISSED. Oliver’s motion to
proceed in forma pauperis is GRANTED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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