                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 5 2000
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 MARCUS DEJUAN CRAIN,

           Petitioner-Appellant,
 v.                                                          No. 99-6228
 H.N. SCOTT; ATTORNEY GENERAL                           (D.C. No. 97-CV-413)
 OF THE STATE OF OKLAHOMA,                                  (W.D. Okla)

           Respondent-Appellee.




                                   ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       In June 1994, Petitioner Marcus Dejuan Crain pled guilty in Oklahoma state court

to conspiracy to commit a felony, concealing stolen property, and twelve counts of first

degree robbery, after former conviction of two or more felonies. The trial court sentenced

Petitioner to 30 years imprisonment on each of the first degree robbery convictions and 25


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         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)(c); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
years imprisonment on each of the remaining counts, with all sentences to be served

concurrently, but consecutive to sentences Petitioner received in other cases for three

counts of concealing stolen property and three counts of making a false declaration to a

pawnbroker, all after former conviction of a felony. Petitioner did not move to withdraw

his guilty pleas and did not perfect a direct criminal appeal. Instead, he unsuccessfully

sought post-conviction relief in state court. Thereafter, Petitioner filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254 in federal district court raising five claims:

(1) insufficient evidence supported his conviction for first degree robbery; (2) insufficient

evidence supported his conviction for conspiracy to commit a felony; (3) the trial court

erred by failing to require full disclosure of the plea agreement and by misadvising him

about the consequences of such plea agreements; (4) the trial court erred by failing to

establish a factual basis for the guilty pleas entered on the robbery charges; and (5) trial

counsel was ineffective for allowing Petitioner to enter guilty pleas to charges he “knew

nothing about” and “did not commit,” and for failing to file a pretrial motion to quash the

information.

       In a thorough report and recommendation, a magistrate judge recommended denial

of the petition. The magistrate judge concluded that Petitioner’s first four claims were

procedurally barred and that Petitioner failed to demonstrate cause and prejudice or a

fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750

(1991) (“In all cases in which a state prisoner has defaulted his federal claims in state


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court pursuant to an independent and adequate state procedural rule, federal habeas

review of the claims is barred 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.”). The

magistrate judge further concluded that Petitioner’s ineffective assistance of counsel

claim lacked merit. The district court subsequently adopted the report and

recommendation and denied Petitioner a certificate of appealability. See 28 U.S.C.

§ 2253(c). His renewed application is before us.

       A petitioner may appeal the denial of a § 2254 petition only if “a circuit justice or

judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of

appealability “may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. at § 2253(c)(2). We conclude that Petitioner has

failed to make the required showing.

       We have thoroughly reviewed Petitioner’s application for a certificate of

appealability, his brief, the magistrate judge’s report and recommendation, the district

court’s order adopting that report and recommendation, and the entire record before us.

We conclude that Petitioner has failed to make a substantial showing of the denial of a

constitutional right substantially for the reasons set forth in the magistrate judge’s report

and recommendation. Accordingly, we deny his request for a certificate of appealability

and dismiss the appeal.


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CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.

                               Entered for the Court,



                               Bobby R. Baldock
                               Circuit Judge




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