                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 17 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    STEVEN MEEKER,

                Petitioner - Appellant,

    v.                                                   No. 01-6394
                                                   (D.C. No. CIV-01-233-W)
    RON WARD, Warden,                                  (W.D. Oklahoma)

                Respondent - Appellee.


                            ORDER AND JUDGMENT            *




Before HENRY and HOLLOWAY , Circuit Judges, and               BRORBY , Senior
Circuit Judge.




         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      This order and judgment is not binding precedent, except under the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.
      Petitioner-appellant Steven Dale Meeker appeals the order of the district

court denying his petition for a writ of habeas corpus brought pursuant to

28 U.S.C. § 2254. He also reapplies in this court for a certificate of appealability

(COA). In order to merit the grant of COA, petitioner must make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which

requires “a demonstration that . . . includes showing 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 presented were adequate to

deserve encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation omitted). Because petitioner has failed to make this

showing, we deny the application for COA and dismiss the appeal.

      Petitioner was convicted in Oklahoma state court of one count of

committing a lewd or indecent act with a child under sixteen and one count of

rape in the first degree by instrumentation. Petitioner was sentenced to twelve

years’ imprisonment. After petitioner’s conviction and sentence were affirmed on

direct appeal, he brought two unsuccessful actions for state post-conviction relief.

      In his federal habeas petition, petitioner raises fifteen claims, eight of

which were adjudicated on the merits by the state court, either on direct appeal or

in his first post-conviction proceeding. Federal habeas relief will be forthcoming




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based on those claims, therefore, only if petitioner can demonstrate that the

decision of the Oklahoma court

      “was contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court of the
      United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
      unreasonable determination of the facts in light of the evidence
      presented in the State court proceeding.” Id. § 2254(d)(2). Thus, we
      may grant the writ if we find the state court arrived at a conclusion
      opposite to that reached by the Supreme Court on a question of law;
      decided the case differently than the Supreme Court has on a set of
      materially indistinguishable facts; or unreasonably applied the
      governing legal principle to the facts of the prisoner’s case.

Hain v. Gibson , 287 F.3d 1224, 1229 (10th Cir. 2002) (quotation omitted).

      The federal magistrate judge, in a thorough and well-reasoned report and

recommendation, recommended the petition be denied. With regard to the claims

adjudicated by the state court, the magistrate judge determined that the Oklahoma

court’s rejection of petitioner’s claims in each instance was not contrary to, or an

unreasonable application of, clearly established Supreme Court jurisprudence, and

that the appellate court’s decision was not based on an unreasonable

determination of the facts in light of the evidence presented at trial.

      As for the claims presented for the first time in petitioner’s second state

post-conviction proceeding, the magistrate judge found that these claims had been

defaulted in state court on an adequate and independent state procedural ground

and that petitioner had failed to demonstrate cause and prejudice for this default,

or that failure to address the claims in federal court would amount to

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a fundamental miscarriage of justice.     1
                                              The district court adopted the report and

recommendation and denied the petition for habeas corpus.

       We have reviewed the report and recommendation adopted by the district

court and substantially agree with its analysis.     2
                                                         Petitioner has, therefore, failed to

show 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

presented were adequate to deserve encouragement to proceed further.”


1
        The fundamental miscarriage of justice exception is rare and is “implicated
only in an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.”       Phillips v. Ferguson ,
182 F.3d 769, 774 (10th Cir. 1999) (quotations omitted). Petitioner did not
specifically allege actual innocence in his § 2254 petition, but makes that claim
for the first time on appeal. We thus will not address this argument.         See Rojem
v. Gibson , 245 F.3d 1130, 1141 (10th Cir. 2001). Even if it were not barred,
petitioner has failed to bring forth evidence of actual innocence such that “it is
more likely than not that no reasonable juror would have convicted him . . . .”
Phillips , 182 F.3d at 774 (quotation omitted). Petitioner’s personal assertion of
his innocence, by itself, cannot satisfy the fundamental miscarriage of justice
exception. See Schlup v. Delo , 513 U.S. 298, 329 (1995) (“The meaning of actual
innocence . . . does not merely require a showing that a reasonable doubt exists in
the light of the new evidence, but rather than no reasonable juror would have
found the defendant guilty.”).
2
        Since the date of the magistrate judge’s report and recommendation, this
court has disavowed the use of the “dead-bang winner” language in ineffective
assistance of appellate counsel claims.      See Neill v. Gibson , 278 F.3d 1044, 1057
n.5 (10th Cir. 2001), petition for cert. filed (U.S. May 6, 2002) (No. 01-10121)
(disavowing language in Walker v. Gibson , 228 F.3d 1217, 1237 (10th Cir. 2000),
cert. denied , 533 U.S. 933 (2001), and other cases which required “a showing
more onerous than a reasonable probability that the omitted claim would have
resulted in a reversal on appeal”).


                                               -4-
Slack , 529 U.S. at 484 (quotation omitted). Petitioner has thus failed to make

“a substantial showing of the denial of a constitutional right” as required before

COA may issue. See § 2253(c)(2).

      Petitioner’s motion to submit addendum to opening brief to comply

with 10th Cir. R. 28.2 is granted. Petitioner’s remaining outstanding motions

are denied.

      The application for COA is DENIED, and this appeal is DISMISSED.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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