                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JAN 30 2002
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 WILLIAM G. McMILLAN,

               Petitioner-Appellant,                    No. 01-7066
          v.                                         (E.D. Oklahoma)
 GARY GIBSON, Warden;                             (D.C. No. 98-CV-246-S)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , 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). The case is, therefore, ordered

submitted without oral argument.

      William G. McMillan, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254


      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
habeas corpus petition. For the reasons stated below, we deny a COA and dismiss

the appeal.

      Mr. McMillan was convicted in Oklahoma state court for assault and

battery with a deadly weapon, after former conviction of two or more felonies

(count I); assault with a dangerous weapon, after former conviction of two or

more felonies (count II); larceny of an automobile, after former conviction for

two or more felonies (count III); escape from county jail (count IV); and

conspiracy to commit a felony (count V). In his habeas petition before the district

court, Mr. McMillan raised thirteen instances of error. The matter was referred to

a magistrate judge, who recommended that the petition be dismissed. The district

court adopted the findings of the magistrate judge and dismissed Mr. McMillan’s

petition.

      On appeal, Mr. McMillan raises five “challenges”: (1) any exhaustion

requirement should be excused; (2) actual innocence of the former convictions

used to enhance his sentence; (3) denial of due process during his trial; (4)

ineffective assistance of trial counsel; and (5) ineffective assistance of appellate

counsel. Aplt’s Br. at 2.

      As to Mr. McMillan’s first three challenges, the magistrate judge correctly

determined that he could not consider those issues in a federal habeas proceeding

because the Oklahoma Court of Criminal Appeals (“OCCA”) had not yet had the


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opportunity to address them. Mr. McMillan failed to present these issues in either

his direct appeal or in his appeal of the denial of his post-conviction proceeding

before the OCCA. See Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998);

Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (“The

exhaustion requirement is satisfied if the federal issue has been properly

presented to the highest state court, either by direct review of the conviction or in

a postconviction attack.”). However, because the OCCA would hold these claims

procedurally barred, the magistrate judge noted any opportunity to obtain redress

in state court was rendered “futile,” and as such, “the claims are deemed to be

exhausted for purposes of habeas corpus review.” Rec. vol. II, doc. 46, at 4;

Coleman v. Thompson, 501 U.S. 722, 732 (1991). The magistrate judge next

concluded Mr. McMillan’s procedural default was not excused via the

demonstration of either (1) cause and prejudice for his failure, or (2) a

fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

      The magistrate judge carefully considered, on the merits, Mr. McMillan’s

claims of error regarding ineffective assistance of counsel. A federal court is

precluded from granting habeas relief unless the state court proceeding (1)

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme


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Court”; or (2) “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In addition, a federal court “presume[s

that] the factual findings of the state court are correct unless [the] petitioner can

rebut this presumption by clear and convincing evidence.” Smallwood v. Gibson,

191 F.3d 1257, 1265 (10th Cir. 1999).

      Mr. McMillan maintained that trial counsel failed to advise him of his

rights, consult with him, or call certain witnesses. He contends that his appellate

counsel failed to consult with him before filing the appeal or to include

unspecified arguments in his appellate brief. The magistrate judge determined,

however, that Mr. McMillan could not establish prejudice under Strickland v.

Washington, 466 U.S. 668 (1984), as to the ineffective assistance of trial counsel

claim. See Rec. vol. II, doc. 46, at 6-7. Similarly, the magistrate judge found

that the OCCA correctly applied the Strickland test to Mr. McMillan’s ineffective

assistance of appellate counsel challenge. See id. at 10. The magistrate judge

thus denied relief on these claims.

      We have reviewed the request for a COA, Mr. McMillan’s appellate brief,

the magistrate judge’s recommendation, the district court’s order, and the entire

record before us. Our review demonstrates that Mr. McMillan’s § 2254 petition is

not deserving of further proceedings, debatable among jurists of reason, or subject


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to different resolution on appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Therefore, Mr. McMillan’s request for a COA is denied for substantially

those reasons set forth in the magistrate judge’s thoughtful and thorough Findings

and Recommendation, and this appeal is dismissed.



                                              Entered for the Court,


                                              Robert H. Henry
                                              Circuit Judge




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