                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT
                         __________________________


 RODNEY JAROME BROADES,

       Petitioner-Appellant,                            No. 00-7062
                                                        (E.D. Okla.)
 v.                                              (D.Ct. No. 99-CV-302-B)

 GARY GIBSON, Warden, O.S.P.,

       Respondent-Appellee.

                        ____________________________

                                      ORDER
                               Filed December 4, 2000


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      This matter is before the court on appellant’s petition for rehearing with

suggestion for rehearing en banc. The panel has voted to grant rehearing and file

a revised order and judgment. The order and judgment of November 2, 2000 is

withdrawn and vacated. A copy of the revised order and judgment is attached.

      The suggestion for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service as required by Fed. R. App. P. 35. As

no member of the panel and no judge in regular active service on the court
requested that the court be polled, the suggestion is denied.

                                               Entered for the Court

                                               Patrick Fisher, Clerk of Court

                                               By:
                                                     Keith Nelson
                                                     Deputy Clerk




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                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 4 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 RODNEY JAROME BROADES,

          Petitioner-Appellant,

 v.                                                        No. 00-7062
                                                           (E.D. Okla.)
 GARY GIBSON, Warden, O.S.P.,                       (D.Ct. No. 99-CV-302-B)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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.



      Appellant Rodney Jarome Broades, a state inmate appearing pro se, appeals


      *
          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.
the district court’s decision denying his federal habeas corpus petition filed

pursuant to 28 U.S.C. § 2254. We deny Mr. Broades’ request for a certificate of

appealability and dismiss his appeal.



      In his § 2254 petition, Mr. Broades challenged his state sentence for

robbery by firearm, after former conviction of two or more felonies. The district

court issued an Order denying Mr. Broades’ petition as time-barred under 28

U.S.C. § 2244(d). In making this determination, the district court applied the

mail box rule and the one-year limitation period for bringing a § 2254 action, as

well as tolled the one-year limitation period during the pendency of Mr. Broades’

first state post-conviction application. The district court further determined no

additional tolling occurred during the pendency of Mr. Broades’ “Motion for

[Order] Nunc Pro Tunc” and second post-conviction habeas petition in which he

claimed the state incorrectly enhanced his conviction with prior underlying

convictions. In addressing Mr. Broades’ “Motion for [Order] Nunc Pro Tunc”

and second state post-conviction petition, the district court noted the Oklahoma

Court of Criminal Appeals found the issue he presented barred by the doctrine of

res judicata. It also found the motion barred under Oklahoma law that requires

any challenge to a conviction and sentence be brought pursuant to Oklahoma’s

Post-Conviction Procedure Act.


                                         -2-
      On appeal, Mr. Broades continues to claim his “Motion for [Order] Nunc

Pro Tunc” and second state post-conviction petition should toll his limitation

period under 28 U.S.C. 2244(d)(2). We review de novo the legal basis for the

district court’s dismissal of Mr. Broades’ § 2254 petition. See Hatch v.

Oklahoma, 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied, 517 U.S. 1235

(1996). In so doing, we afford deference to the state court’s construction of state

law. See James v. Gibson, 211 F.3d 543, 549 (10th Cir. 2000).



      Applying this standard, we have carefully reviewed the record on appeal,

Mr. Broades’ brief, and the district court’s order. We hold that even if Mr.

Broades’ “Motion for [Order] Nunc Pro Tunc” and/or second state post-

conviction petition tolled the limitation period under 28 U.S.C. 2244(d)(2), he

fails to make a substantial showing of the denial of a constitutional right as

required under 28 U.S.C. § 2253(c)(2). 1




      1
          We acknowledge the district court did not have the benefit of the United States
Supreme Court decision in Artuz v. Bennett, 2000 WL 1663653 (U.S. Nov. 7, 2000),
when it issued its order. In short, the Supreme Court reasoned the term “properly filed”
under 28 U.S.C. § 2244(d)(2) entails issues related to proper delivery and acceptance, and
does not pertain to whether a post-conviction application contains procedurally barred
claims. Id. at *3-4. The Court stated “[o]nly individual claims, and not the application
containing those claims, can be procedurally defaulted under state law...” Id. at 4
(citations omitted.)


                                           -3-
      First, it is important to note that in considering Mr. Broades’ “Motion for

[Order] Nunc Pro Tunc,” the state district court issued an order clarifying it

enhanced Mr. Broades’ sentence on the basis of at least two prior convictions,

which Mr. Broades apparently contends were not in evidence, nonexistent or

improperly applied. Moreover, in addressing this same issue on appeal, on

rehearing, in the second state post-conviction petition, and in various other

pleadings filed by Mr. Broades, the Oklahoma Court of Criminal Appeals clearly

found Mr. Broades’ claim barred under the doctrine of res judicata on the same

issue. We have stated that “[g]enerally, where ‘a state prisoner has defaulted his

federal claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred unless the prisoner’

can satisfy either the ‘cause and prejudice’ standard, or, alternatively, the

‘fundamental miscarriage of justice standard.’” Moore v. Reynolds, 153 F.3d

1086, 1096 (10th Cir. 1998), cert. denied, 526 U.S. 1025 (1999) (quoting

Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “For this procedural default

doctrine to apply, the state law ground must have been ‘the exclusive basis for the

state court’s holding’ and ‘strictly or regularly followed’ by the state courts and

applied ‘evenhandedly to all similar claims.’” Id. (quoting Maes v. Thomas, 46

F.3d 979, 985 (10th Cir. 1995)). Applying this criteria, we note the Oklahoma

Court of Criminal Appeals has consistently held “[t]he doctrine of res judicata


                                          -4-
bars consideration in post-conviction proceedings of issues which have been, or

which could have been, raised on direct appeal.” Thomas v. Oklahoma, 888 P.2d

522, 525 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 840 (1995); Hale v.

State, 807 P.2d 264, 266-67 (Oka. Crim. App.), cert. denied, 502 U.S. 902 (1991).



       In this case, the Oklahoma Court of Criminal Appeals repeatedly applied

the doctrine of res judicata in barring Mr. Broades’ claim the state district court

improperly enhanced his sentence with his two prior convictions. 2 Thus, the

Oklahoma Court of Criminal Appeals disposed of Mr. Broades’ claim on adequate

and independent state grounds, and federal review is barred unless he can

demonstrate cause for his default and actual prejudice as a result, or fundamental

miscarriage of justice. In this vein, Mr. Broades alleges “cause” for his


       2
           In one order the court held the motion was barred by the doctrine of res judicata
and also noted such a motion should not be treated as a post-conviction application under
Oklahoma’s Post-Conviction Procedure Act. Mr. Broades contends the Court of Criminal
Appeals contradicted itself in another order dismissing his request for a rehearing when it
stated it treated his “Motion to Clarify Order Nunc Pro Tunc” under the Post-Conviction
Procedure Act. Even if the Oklahoma court treated the “Motion to Clarify Order Nunc
Pro Tunc” as a second post-conviction application, it nevertheless found his claim barred
under the doctrine of res judicata because Mr. Broades raised the same underlying
enhancement issue in his direct appeal and first post-conviction application. Thus,
regardless of whether his motion is considered a collateral attack under § 2254 and would
possibly toll the limitation period, the Oklahoma court’s res judicata determination does
not change or affect our examination of the constitutional merits of Mr. Broades’ claim.
For these reasons, we deny Mr. Broades’ October 11, 2000 “Motion for Leave to File
Judicial Notice,” in which he provides supplemental authority in support of this argument.


                                            -5-
procedural default because “new information” showed the Oklahoma Court of

Criminal Appeals did not take “proper notice” of the number of his prior

convictions either on direct appeal or in its order affirming denial of state post-

conviction relief. We conclude Mr. Broades fails to show the requisite cause for

his state procedural default. Specifically, Mr. Broades fails to show that on

appeal, the Oklahoma Court of Criminal Appeals did not consider the actual

number of convictions used to enhance his sentence. To the contrary, the record

shows the Oklahoma court repeatedly considered and rejected Mr. Broades’

argument the district court improperly applied two prior convictions in calculating

his sentence. In addition, the state district court pointed out Mr. Broades’ second

post-conviction petition constituted his fifth legal challenge to his sentence on

these grounds and was frivolous. Under these circumstances, we conclude Mr.

Broades has not shown the state courts’ adjudications concerning the issue of his

prior two convictions “(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or (2) resulted in a decision based on an

unreasonable determination of the facts in light of the evidence that was presented

in the State court proceeding.” See 28 U.S.C.§ 2254(d)(1), (2).



      Finally, Mr. Broades’ conclusory statement that this court’s failure to


                                          -6-
further toll his limitation period “would be a grave miscarriage of justice” is

insufficient to meet the miscarriage of justice exception. The “fundamental

miscarriage of justice” burden is satisfied only if Mr. Broades produces facts

amounting to a “colorable showing of factual innocence.” Kuhlmann v. Wilson,

477 U.S. 436, 454 (1986). While the state enhanced Mr. Broades’ sentence on the

basis of two underlying convictions, he has not attempted to show he is factually

innocent of those prior convictions.



      In order for this court to grant a certificate of appealability, Mr. Broades

must make a substantial showing of the denial of a constitutional right as required

under 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on

procedural grounds, as it did here, without reaching the underlying constitutional

claim, “a [certificate of appealability] should issue when the prisoner shows, at

least, that jurists of reasons would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reasons would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1604 (2000). In this case, it

may be debatable whether the district court made the correct procedural ruling,

but clearly, Mr. Broades fails to show jurists of reason would find it debatable

whether his petition states a valid claim of the denial of a constitutional right.


                                          -7-
      Accordingly, for the reasons stated herein, we deny Mr. Broades’ request

for a certificate of appealability, deny his October 11, 2000 “Motion for Leave to

File Judicial Notice,” and DISMISS his appeal.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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