F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 15 2002
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
MARK COLLINS,
Petitioner - Appellant,
v. No. 01-6393
(W.D. Okla.)
STEPHEN W. KAISER; OKLAHOMA (D.C. No. 99-CV-1185-T)
DEPARTMENT OF CORRECTIONS;
JAMES L. SAFFLE,
Respondents - Appellees.
____________________________
ORDER AND JUDGMENT *
Before BARRETT, PORFILIO, and BRORBY, Senior 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)(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This order and judgment is not binding precedent except under the doctrines of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.
Mark R. Collins, a state prisoner proceeding pro se, requests a certificate of
appealability ("COA") to appeal the denial of his 28 U.S.C. § 2254 habeas corpus
petition. Mr. Collins also asks to proceed in forma pauperis. We deny Mr.
Collins’ application for a certificate of appealability, deny his motion for leave to
proceed on appeal in forma pauperis, and dismiss his appeal.
An Oklahoma state court jury convicted Mr. Collins of first degree rape and
four counts of furnishing beer to persons under the age of twenty-one. He was
sentenced to twenty-five years imprisonment on the rape count and six months
imprisonment on each of the other counts. On direct appeal, the Oklahoma Court
of Criminal Appeals affirmed the convictions and sentences. Mr. Collins then
sought habeas relief in federal district court arguing: 1) the Oklahoma Court of
Criminal Appeals did not have jurisdiction to affirm his rape conviction because
his rape conviction was never appealed; and 2) his appellate counsel was
ineffective because she failed to appeal his rape conviction. The district court
found the jurisdictional challenge was not supported by the record but stayed its
decision on the ineffective assistance of counsel argument while Mr. Collins filed
an application for post-conviction relief in an Oklahoma court. Mr. Collins’
application for post-conviction relief argued his appellate counsel was ineffective
and the charging documents were not sufficient to apprize him of the criminal
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charges against him. After the Oklahoma court denied the post-conviction relief
petition, Mr. Collins did not appeal the decision to the Oklahoma Court of
Criminal Appeals. The federal district court then denied Mr. Collins’ habeas
corpus petition because the ineffective assistance of counsel claim was barred by
an independent and adequate state procedural rule – Mr. Collins failed to timely
appeal the denial of post-conviction relief.
In requesting we issue a certificate of appealability, Mr. Collins argues 1)
the Oklahoma Court of Criminal Appeals did not have jurisdiction over the direct
appeal of his rape conviction because he did not appeal his rape conviction; 2) the
charging documents were not sufficient to inform him of the charges against him;
and 3) his counsel on appeal was ineffective in failing to appeal his rape
conviction.
In determining whether to issue a certificate of appealability when the
district court has denied a habeas petition on the merits, we ask whether
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When
the district court denies the habeas petition on procedural grounds, we must
decide whether the petitioner has made a substantial showing “that jurists of
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reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.
Mr. Collins’ claim the Oklahoma Court of Criminal Appeals lacked
jurisdiction over the direct appeal of his rape conviction is without merit. Mr.
Collins’ brief on direct appeal clearly shows he appealed admission of evidence
relevant to his rape charge and sentence. Therefore, we decline to grant a
certificate of appealability on this issue.
Furthermore, we conclude Mr. Collins’ claim the charging documents were
insufficient is procedurally barred. We also conclude Mr. Collins’ claim of
ineffective appellate counsel is procedurally barred. Under Oklahoma law, an
appeal of a denial of post-conviction relief is procedurally barred unless the party
desiring to appeal files a notice of appeal within ten days of the denial of post-
conviction relief and a petition in error within thirty days of the denial.
Oklahoma Court of Criminal Appeals Rule 5.2(C); Weatherford. V. Oklahoma, 13
P.3d 987, 988-89 (Okal. Crim. App. 2000). Mr. Collins did not file a timely
appeal of the denial of post-conviction relief. We have previously held a
procedural default under Oklahoma Court of Criminal Appeals Rule 5.2(C) is an
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independent and adequate state ground sufficient to preclude habeas review.
Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.), cert. denied, 525 U.S. 933
(1998). Therefore, the independent and adequate state ground doctrine prevents
our review of claims raised in Mr. Collins post-conviction relief petition. See
Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“In the absence of the
independent and adequate state ground doctrine in federal habeas, habeas
petitioners would be able to avoid the exhaustion requirement .... The
independent and adequate state ground doctrine ensures that the States’ interest in
correcting their own mistakes is respected in all federal habeas cases.”).
Notwithstanding a procedural default in state court, we will grant a
certificate of appealability if 1) there is a showing of cause for the default and
actual prejudice as a result of the alleged violation of federal law, or 2) the failure
to consider the claim will result in a fundamental miscarriage of justice, usually
evidenced by actual or factual innocence. Demarest v. Price, 130 F.3d 922, 941-
42 (10th Cir. 1997). Neither of these exceptions is applicable here. With respect
to the first, Mr. Collins argues “[he] did not know that [he] was supposed to
appeal the denial of [his] post-conviction application.” This is not cause to
excuse Mr. Collins’ procedural default. Rodriguez v. Maynard, 948 F.2d 684, 688
(10th Cir. 1991). Similarly, the second exception is inapplicable because Mr.
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Collins has not presented new reliable evidence to support his contention of
actual innocence. Schlup v. Delo, 513 U.S. 298, 324 (1995). Consequently, we
decline to grant a certificate of appealability on either of the claims raised in Mr.
Collins’ petition for post-conviction relief.
Lastly, we consider Mr. Collins’ motion to proceed in forma pauperis. To
proceed in forma pauperis, Mr. Collins “must show a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised on appeal.” DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Because Mr. Collins’ petition
presents only frivolous legal arguments in support of his assertions, we deny his
request to proceed in forma pauperis.
For these reasons, we DENY Mr. Collins’ motion for a certificate of
appealability, DENY his motion to proceed in forma pauperis, and DISMISS his
appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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