                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                      TENTH CIRCUIT                             October 7, 2010

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
FRANKLIN L. GIBBS,

       Petitioner - Appellant,
                                                              No. 10-7055
v.                                                            (E.D. Okla.)
                                                 (D.C. No. 6:09-CV-00427-FHS-KEW)
WALTER DINWIDDIE,

       Respondent - Appellee.



                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY
                           AND DISMISSING APPEAL


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Franklin L. Gibbs, an Oklahoma state prisoner appearing pro se1 and in forma

pauperis, wants to appeal from the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition. Because he has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a Certificate of

Appealability (COA).

                                 I.    BACKGROUND

       After fatally shooting his girlfriend, Gibbs was convicted in Oklahoma state court



       1
        We liberally construe Gibbs’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
of first degree murder (Count I) and felon in possession of a firearm after two or more

prior felony convictions (Count II). He was sentenced to life imprisonment without

parole on Count I and life imprisonment with the possibility of parole on Count II. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed on direct appeal. Gibbs filed a

petition for state post-conviction relief. The trial court denied the petition and the OCCA

affirmed.

       Gibbs filed a § 2254 habeas corpus petition in federal court alleging the evidence

was insufficient to support his convictions, there is newly discovered evidence that was

withheld by the State and the state courts improperly failed to adjudicate the merits of his

claims. The district court denied relief. It determined the evidence was sufficient to

support his convictions under Jackson v. Virginia, 443 U.S. 307 (1979),2 and therefore

the OCCA’s rejection of his insufficiency of the evidence claim on direct appeal was not

contrary to nor an unreasonable application of clearly established law under 28 U.S.C. §

2254(d). It also concluded the OCCA had correctly determined there was no newly

discovered evidence and even if there was, Gibbs failed to establish “cause or prejudice”

for failing to bring this claim on direct appeal or that failure to review this claim would

result in a fundamental miscarriage of justice.3 The district court denied Gibbs’



       2
          Sufficient evidence exists to support a conviction if, “after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S. at
319.
       3
         “On habeas review, this court does not address issues that have been defaulted in
state court on an independent and adequate state procedural ground, unless the petitioner
can demonstrate cause and prejudice or a fundamental miscarriage of justice.” English v.

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subsequent request for a COA.

                                  II.    DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must 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. McDaniel, 529 U.S.

473, 484 (2000) (quotations omitted).

       When the district court denies a habeas petition on procedural grounds
       without reaching the prisoner’s underlying constitutional claim, a COA
       should issue when the prisoner shows, at least, that jurists of reason would
       find it debatable whether the petition states a valid claim of the denial of a
       constitutional right and that jurists of reason would find it debatable
       whether the district court was correct in its procedural ruling.

Id. “Where a plain procedural bar is present and the district court is correct to invoke it

to dispose of the case, a reasonable jurist could not conclude either that the district court

erred in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

       We have carefully reviewed the record, the district court’s order and Gibbs’

application for a COA and proposed opening brief. Because we conclude no jurist of

reason could debate the correctness of the district court’s decision, we DENY Gibbs’


Cody, 146 F.3d 1257, 1259 (10th Cir.1998).

                                             -3-
request for a COA and DISMISS this nascent appeal.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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