                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 8 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DEMONTE LAMONZ OUSLEY,

                Petitioner - Appellant,

    v.                                                    No. 01-5075
                                                    (D.C. No. 97-CV-667-H)
    RON WARD,                                          (N.D. Oklahoma)

                Respondent - Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Demonte Lamonz Ousley appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition.     1
                                                 Ousley was convicted in Oklahoma

state court of two counts of robbery with firearms, sexual battery, and forcible

sodomy, after former conviction of two or more felonies. His habeas petition

raised two claims relevant to this appeal: (1) violation of due process rights by the

introduction of tainted eyewitness identification testimony, and (2) violation of

the right to effective assistance of trial counsel by his attorney’s failure to

investigate and present the possibly exculpatory identification testimony of a

witness identified in police reports.   2



       The magistrate judge assigned to the case carefully analyzed the petition

and examined the record. Addressing the merits of the identification claim, the

magistrate judge determined that the eyewitnesses’ identifications of Ousley were

reliable and that admission of their testimony did not violate his due process

rights. S ee Grubbs v. Hannigan , 982 F.2d 1483, 1490 (10th Cir. 1993) (quoting

1
      Previously, this court granted a certificate of appealability.   See 28 U.S.C.
§ 2253(c).
2
       In his appellate brief, Ousley argues that appellate counsel was ineffective
for failure to present this issue on direct appeal. Because this claim of ineffective
assistance of appellate counsel was not made in the district court, we decline to
consider it on appeal. “[A]bsent extraordinary circumstances, [this court] will not
consider arguments raised for the first time on appeal. “This is true whether an
appellant is attempting to raise ‘a bald-faced new issue’ or a new theory ‘that falls
under the same general category’ as a previous argument.”     McDonald v.
Kinder-Morgan, Inc ., 287 F.3d 992, 999 (10th Cir. 2002) (quoting    Lyons v.
Jefferson Bank & Trust , 994 F.2d 716, 722 (10th Cir.1993).

                                             -2-
Kirby v. Illinois , 406 U.S. 682, 691 (1972) for the proposition that a pre-trial

identification procedure violates due process only when it “is so unnecessarily

suggestive that it is ‘conducive to irreparable mistaken identification’”). As to

Ousley’s claim regarding the exculpatory witness, the magistrate judge observed

that, when brought in a state petition for post-conviction relief, the Oklahoma

Court of Criminal Appeals concluded that the claim was procedurally defaulted

for failure to bring it in his direct appeal. The magistrate judge rejected Ousley’s

argument that his admitted procedural default was overcome by a showing of

actual innocence.   See Sellers v. Ward , 135 F.3d 1333, 1338-39 (10th Cir. 1998)

(describing the showing of actual innocence necessary for consideration of the

merits of an otherwise barred claim).

      Therefore, the magistrate judge’s recommendation was to deny Ousley’s

habeas petition. Upon de novo review, the district court adopted the report and

recommendation and denied the petition.

      This court has conducted a   de novo review of the parties’ briefs and

contentions and the entire record on appeal. Based on that review, this court

AFFIRMS for substantially those reasons set forth in the district court’s order




                                          -3-
filed March 30, 2001, and the magistrate judge’s report and recommendation filed

October 26, 2000.



                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




                                       -4-
