                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 9, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 JERA LD SHOU SE,

              Petitioner - A ppellant,                   No. 07-6033
       v.                                              (W .D. Oklahoma)
 JUSTIN JONES,                                     (D.C. No. CV -06-1012-F)

              Respondent - Appellee.



                                         OR DER


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Proceeding pro se, Jerald Shouse seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Shouse has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      An O klahoma jury convicted Shouse of trafficking in illegal drugs. Shouse

appealed his conviction, raising the following arguments: (1) his Fourth

Amendment rights were violated by the warrantless search of his residence; (2)
the trial court committed numerous errors including improperly admitting

evidence, improperly instructing the jury, failing to permit surrebuttal testimony,

and failing to record bench conferences; (3) the evidence was insufficient to

support his conviction; (4) the wording of the Information did not give him fair

notice of the charge against him; (5) prosecutorial misconduct deprived him of a

fair trial; and (6) cumulative error deprived him of a fair trial. The Oklahoma

Court of Criminal Appeals (“OCCA”) considered Shouse’s arguments but

affirmed his conviction. Shouse then filed a state application for post-conviction

relief, arguing ineffective assistance of appellate counsel. Shouse’s post-

conviction application was denied and the OCCA affirmed the denial.

      Shouse filed the instant § 2254 habeas petition on September 19, 2006. In

his petition, Shouse raised all the issues he presented in his direct appeal and in

his state post-conviction application. The district court addressed each of

Shouse’s claims in turn, applying the standard set forth in the Antiterrorism and

Effective Death Penalty Act and concluding the state court’s adjudication of the

claims was not contrary to, nor an unreasonable application of clearly established

federal law or based on an unreasonable factual determination. 28 U.S.C. §

2254(d).

      This court cannot grant Shouse a COA unless he can demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Shouse has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). Shouse is not required

to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      This court has review ed Shouse’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in M iller-El and concludes that Shouse

is not entitled to a COA. 1 The district court’s resolution of Shouse’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, Shouse has not “made a substantial showing of the




      1
        In the reply brief Shouse filed with the district court, he argued the
OCCA’s application of a new standard of review to his sufficiency of the
evidence claim was an ex post facto violation. But see Warner v. Oklahoma, 144
P.3d 838, 862-63 (Okla. Crim. App. 2006) (concluding application of new
standard of review did not violate the Due Process Clause or ex post facto
principles). W e do not consider Shouse’s arguments relating to this claim
because it was not asserted in the state post-conviction proceedings but was raised
for the first time in the reply brief. Thus, Respondent had no opportunity to
either address it on the merits or argue it is subject to application of an
anticipatory procedural bar.

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denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §

2253(c)(2).

      This court denies Shouse’s request for a COA and dismisses this appeal.



                                               ENTERED FOR THE COURT


                                               M ichael R. M urphy
                                               Circuit Judge




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