                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        June 6, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


JOHN W ESLEY PHILLIPS,

             Petitioner-A ppellant,

       v.

DAV ID C. M ILLER,
                                                        No. 06-6292
                                                     (W .D. Oklahoma)
             Respondent-Appellee,
                                                 (D.C. No. CIV-05-1296-M )
       and

A TTO RNEY G EN ER AL O F THE
STA TE OF O K LA H O MA ,

             Respondent.



                                      OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.




      Proceeding pro se and in form a pauperis, John W esley Phillips 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

Phillips 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. 1 Id.

§ 2253(c)(2).

      An Oklahoma jury convicted Phillips of one count of first degree rape after

two or more felonies, in violation of Okla. Stat. tit. 21, § 1114. Phillips appealed

his conviction, raising the following three arguments: (1) his Sixth Amendment

rights were violated when the trial court admitted the preliminary hearing

testimony of the victim, (2) the transcript of the victim’s testimony from the

preliminary hearing was improperly provided to the jury during deliberations, and

(3) the evidence presented at trial was insufficient to support his conviction. The

Oklahoma Court of Criminal Appeals considered all three arguments on the merits

but affirmed Phillips’ conviction.

      Phillips then filed an application for state post-conviction relief alleging (1)

ineffective assistance of trial and appellate counsel, (2) the invalid use of prior

convictions to enhance his sentence, (3) the withholding of exculpatory evidence

by the prosecution, (4) the use of perjured testimony to obtain his conviction, and

(5) prosecutorial misconduct. The state district court denied Phillips relief on his

claim of ineffective assistance of appellate counsel and concluded post-conviction

review of Phillips’ remaining claims was barred because he failed to raise the

claims in his direct appeal. The Oklahoma Court of Criminal Appeals affirmed

      1
       Because Phillips complied with the prisoner mailbox rule, his appeal is
timely. See Price v. Philpot, 420 F.3d 1158, 1165-66 (10th Cir. 2005); United
States v. Ceballos-M artinez, 387 F.3d 1140, 1143 (10th Cir. 2004).

                                          -2-
the denial of post-conviction relief and rejected Phillips’ additional argument the

state district court erred by failing to hold an evidentiary hearing.

      Phillips filed the instant § 2254 habeas petition on November 7, 2005. In

his petition, Phillips raised all the claims he presented in both his direct appeal

and his application for post-conviction relief. In addition, he asserted his due

process rights were violated during the state post-conviction proceedings because

the state court failed to hold an evidentiary hearing or appoint counsel to

represent him. The district court addressed each of Phillips’ claims in turn. First,

the court concluded several of Phillips’ claims were procedurally barred because

he procedurally defaulted those claims in Oklahoma state court by not raising

them in his direct appeal. See Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991). The court concluded Phillips failed to show cause for the default and

actual prejudice or, alternatively, that the failure to review the claims w ould

result in a fundamental miscarriage of justice. See id. at 750. The district court

addressed the merits of Phillips’ claims that his appellate counsel was

constitutionally ineffective but concluded he was not entitled to habeas relief on

those claims because he had not established either deficient performance or

prejudice under the test set out in Strickland v. Washington, 466 U.S. 668, 687

(1984). Habeas relief w as also denied on Phillips’ claims that his due process

rights were violated during the state post-conviction proceedings. The court also

concluded Phillips could not obtain habeas corpus relief on his stand-alone claim

                                          -3-
of actual innocence. See LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir.

2001). The district court then applied the standard set out in Crawford v.

Washington, 541 U.S. 36 (2004), to Phillips’ Confrontation Clause claim,

concluding the claim failed on the merits because Phillips had an adequate

opportunity to cross-examine the victim during the preliminary hearing. As to the

remaining claims, both of which were previously adjudicated by the Oklahoma

state court on direct appeal, the district court applied the standard set forth in the

Antiterrorism and Effective D eath Penalty Act and concluded the state court’s

adjudication of those claims was not contrary to, nor an unreasonable application

of clearly established federal law. 28 U.S.C. § 2254(d).

      This court cannot grant Phillips 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

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

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

Phillips 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, 123 S. Ct. 1029, 1040 (2003). Phillips is not

required to demonstrate 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).

                                           -4-
      This court has review ed Phillips’ application for a COA and appellate

brief, 2 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 Phillips is

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

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

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

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

§ 2253(c)(2).

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

                                        Entered for the Court
                                        Elisabeth A . Shumaker, Clerk



                                        By:
                                                Deputy Clerk




      2
        In his appellate brief, Phillips raises several issues he did not present to
the district court, including allegations of juror bias, ex parte communications
between the trial judge and the prosecution, and cumulative error. He presents
these issues in more detail in a supplemental brief which he seeks permission to
file. This court does not address claims raised for the first time on appeal.
Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005). Phillips’ m otion to
supplement his opening brief is denied.

                                          -5-
