FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TRAVIS W. GIBSON,
Petitioner - Appellant, No. 07-5060
v. N. D. Okla.
STATE OF OKLAHOMA, (D.C. No. 03-CV-405-CVE-PJC)
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
In a thorough opinion and order the district court dismissed Travis Gibson’s
28 U.S.C. § 2254 petition for habeas corpus because his claims were
procedurally defaulted. Gibson failed to exhaust his state remedies in that he did
not appeal from his felony conviction, entered based upon his Alford plea, 1 to the
Oklahoma Court of Criminal Appeals (OCCA). The district court chose not to
dismiss the unexhausted claims because to do so would be futile since the claims
were procedurally barred under Oklahoma law (failure to take a direct appeal or
failure to raise an issue in a direct appeal bars collateral review of the issue). 2
The court afforded Gibson an opportunity to overcome the procedural bar by
showing cause (external factors impeded his ability to comply with state
procedural rules) and prejudice (actual prejudice resulting from the error about
which he complains) or a fundamental miscarriage of justice (actual innocence).
Gibson responded with a claim of actual innocence based upon an argument
that Oklahoma law was misinterpreted or misapplied. The district court
appropriately dealt with that claim, concluding his argument confused factual
innocence (which he was required to, but did not, demonstrate) with legal
innocence (which is insufficient). The specifics of his claims and arguments are
well set out by the district court and will not be repeated here. After dismissing
Gibson’s habeas petition the district court denied his request for a certificate of
appealability (COA). He has repeated his request for a COA to this Court. We
1
“An ‘Alford” plea, named after the Supreme Court’s decision in North
Carolina v. Alford, is a plea denominated as a guilty plea but accompanied by
protestations of innocence.” United States v. Buonocore, 416 F.3d 1124, 1128 n.2
(10th Cir. 2005).
2
The defendant also filed two post-conviction petitions in the state trial
court, which were denied. He did not appeal either adverse ruling to the OCCA.
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also deny the request.
The district court’s dismissal was clearly, concisely and correctly stated.
Jurists of reason would not disagree with the result. Miller-El v. Cockrell, 537
U.S. 322, 336 (2003).
We DENY Gibson’s request for COA and DISMISS his putative appeal.
FOR THE COURT:
Terrence L. O’Brien
United States Circuit Judge
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