                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 19 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 ANTHONY CHURCHWELL,

           Petitioner-Appellant,
 v.                                                       No. 00-6048
 JAMES L. SAFFLE,                                   (D.C. No. CV-99-777-M)
                                                          (W.D.Okla.)
           Respondent-Appellee.




                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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.

       Anthony Churchwell appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition for habeas corpus relief. We exercise jurisdiction pursuant to 28



       This order and judgment is not binding precedent, except under the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.
U.S.C. § 1291, deny permission to proceed on appeal in forma pauperis, deny a

certificate of appealability, and dismiss the appeal.

                                            I.

      In 1997, Churchwell was convicted in Oklahoma state court of shooting

with intent to kill (Okla. Stat. tit. 21, § 652), robbery with a firearm (Okla. Stat.

tit. 21, § 801), and burglary in the first degree (Okla. Stat. tit. 21, § 1431), each

after former convictions of two or more felonies. The trial court sentenced

Churchwell to an aggregate 200-year sentence. Churchwell appealed to the

Oklahoma Court of Criminal Appeals, arguing (1) the admission of his non-

testifying co-defendant’s confession violated    Bruton v. United States , 391 U.S.

123 (1968), (2) his convictions for robbery and burglary violated the double

jeopardy clause, and (3) the sentences imposed were excessive. The Oklahoma

Court of Criminal Appeals rejected Churchwell’s double jeopardy and excessive

sentence claims, but concluded the admission of his co-defendant’s confession

violated Bruton . The court determined the error was harmless beyond a

reasonable doubt because of the substantial evidence of Churchwell’s guilt and

affirmed his convictions and sentences.

      Churchwell filed an application for post-conviction relief in state court,

arguing (1) ineffective assistance of appellate counsel, (2) error in the admission

of evidence of former convictions, (3) insufficient evidence of former


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convictions, (4) ineffective assistance of trial counsel, (5) ineffective assistance

of trial counsel because of conflict of interest, and (6) error in the acceptance of a

stipulation as to his prior convictions. The state district court denied Churchwell

post-conviction relief, concluding he did not prove ineffective assistance of

appellate counsel and failed to show why he did not raise his remaining claims on

direct appeal. Churchwell filed a motion to set aside the order, contending he did

not receive a copy of the court’s order and was unable to file a timely appeal.

The state district court denied the motion, finding Churchwell was transferred to

a new facility on December 2, 1998, but did not file a notice of change of address

with the court until January 15, 1999, and that Churchwell had not demonstrated

he was denied an appeal “through no fault of his own.” Churchwell then filed a

petition for writ of mandamus to order the state district court to grant him an

appeal out of time or allow him to show he was denied an appeal through no fault

of his own. The Court of Criminal Appeals denied the petition for mandamus,

concluding Churchwell had not demonstrated he was denied an appeal through no

fault of his own.

      In June 1999, Churchwell filed a 28 U.S.C. § 2254 petition for habeas

corpus relief in federal district court, alleging the same claims he raised on direct

appeal and in his petition for post-conviction relief. The magistrate judge

recommended that relief be denied. The magistrate determined the conclusions


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of the Oklahoma Court of Criminal Appeals that the    Bruton violation was

harmless error and there was no double jeopardy violation were not contrary to,

or an unreasonable application of, clearly established Supreme Court precedent.

The magistrate concluded the sentence was within the statutory limits prescribed

in Oklahoma for multiple habitual offender offenses. The magistrate further

determined that Churchwell failed to exhaust his state law remedies on his

remaining claims by not appealing the denial of post-conviction relief to the

Oklahoma Court of Criminal Appeals. The magistrate noted there is an exception

to the exhaustion requirement when the petitioner has procedurally defaulted his

federal claims in state court and concluded that requiring Churchwell to exhaust

his claims would be futile because they would be procedurally barred. The

magistrate determined that Churchwell’s procedural default in state court barred

habeas review of his remaining claims. Churchwell objected to the magistrate’s

report and recommendation. The district court adopted the magistrate’s report

and recommendation, denied Churchwell’s § 2254 petition, and denied

Churchwell a certificate of appealability. The district court did not rule on

Churchwell’s motion to proceed on appeal in forma pauperis, so we will deem the

motion denied.

                                         II.

      On appeal Churchwell argues (1) the district court erred in not dismissing


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his § 2254 petition without prejudice, (2) his conviction for robbery with a

firearm and burglary violated the double jeopardy clause, and (3) the    Bruton

violation was not harmless error. In reviewing the denial of habeas relief, we

review the district court’s factual findings under a clearly erroneous standard and

its legal conclusions de novo.   Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.

1999), cert. denied , 120 S. Ct. 944 (2000). Section 2254(d) provides that a

petitioner in the custody of a state court shall not be granted habeas relief

       with respect to any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the claim–(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 that
       was based on an unreasonable determination of the facts in light of
       the evidence presented in the State court proceeding.

See Williams v. Taylor , 120 S. Ct. 1495, 1506-08 (2000) (clarifying § 2254(d)

standard of review).

       Churchwell contends the district court erred in denying his habeas petition

rather than dismissing it without prejudice, because it contained a mixture of

exhausted and unexhausted claims. Churchwell cites to        Rose v. Lundy , in which

the Supreme Court held that “a district court must dismiss habeas petitions

containing both unexhausted and exhausted claims.” 455 U.S. 509, 522 (1982).

Churchwell did not raise this issue in his objection to the magistrate’s report and

recommendation, thereby waiving any objection.        See United States v. One Parcel


                                            5
of Real Property , 73 F.3d 1057, 1060 (10th Cir. 1996) (holding that “a party’s

objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or

for appellate review”).

       We also conclude that Churchwell’s dismissal argument is without merit.

“[D]ismissal without prejudice for failure to exhaust state remedies is not

appropriate if the state court would now find the claims procedurally barred on

independent and adequate state procedural grounds.”        Smallwood v. Gibson , 191

F.3d 1257, 1267 (10th Cir. 1999) (citing    Coleman v. Thompson , 501 U.S. 722,

735 n.1 (1991)). Churchwell would be barred from presenting these unexhausted

claims again in a subsequent state post-conviction relief proceeding.    See Okla.

Stat. tit. 22, § 1086. This is an independent and adequate state procedural ground

that bars his claims.   See Smallwood , 191 F.3d at 1268 (defining “independent”

and “adequate”).

       Churchwell contends his robbery with a firearm and burglary convictions

violated the double jeopardy clause and the state court’s decision to the contrary

ignored Supreme Court precedent in      Blockburger v. United States , 284 U.S. 299

(1932), and was an unreasonable application of clearly established federal

constitutional law. The Oklahoma Court of Criminal Appeals cited        Cannon v.

Oklahoma , 827 P.2d 1339 (Okla. Ct. Crim. App. 1992), in concluding


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Churchwell’s convictions did not violate the double jeopardy clause. The court

in Cannon concluded convictions for burglary and robbery did not violate the

double jeopardy clause because the burglary was complete upon the entry of the

home and the robbery involved the subsequent theft of property.       Id. at 1342.

Churchwell has not shown how the state court’s decision was contrary to

Supreme Court precedent or that it involved an unreasonable application of the

facts.

         Churchwell contends the state court’s conclusion that the   Bruton violation

was harmless was contrary to, and an unreasonable application of, clearly

established federal constitutional law.     Bruton violations are subject to harmless

error analysis.   See United States v. Glass , 128 F.3d 1398, 1404 (10th Cir. 1997)

(quoting Schneble v. Florida , 405 U.S. 427, 430 (1972)). The magistrate detailed

the evidence against Churchwell establishing his guilt.       See Report and

Recommendation of Dec. 16, 1999, at 8-10. We agree there was overwhelming

evidence of Churchwell’s guilt, including the victim’s testimony identifying

Churchwell as the person who entered his home uninvited, pointed a gun at him,

and took a ring from him. The admission of the co-defendant’s confession was

harmless beyond a reasonable doubt.

                                             III.

         We DENY Churchwell a certificate of appealability, DENY him leave to


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proceed on appeal in forma pauperis, and DISMISS the appeal. The mandate

shall issue forthwith.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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