                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 19 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 TERRY COTTEN,

                Petitioner - Appellant,                   No. 98-7102
           v.                                           (E.D. Oklahoma)
 RONALD J. CHAMPION, Warden;                        (D.C. No. CV-95-577-B)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

                Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , 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.




       This order and judgment is not binding precedent, except under the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.
       Terry Cotten, appearing pro se, seeks a certificate of appealability in order

to appeal from the district court’s dismissal of his 28 U.S.C. § 2254 petition for

writ of habeas corpus.    1
                              Because Cotten has failed to make “a substantial showing

of the denial of a constitutional right,” we deny his application for a certificate of

appealability and dismiss this appeal. 28 U.S.C. § 2253(c)(2).

       In December 1976, an Oklahoma state jury convicted Cotten and a

codefendant of second degree murder in connection with a robbery and killing

which occurred in May 1976. Pursuant to the statute in effect at the time the

offense was committed, the trial judge sentenced Cotten to an indeterminate

sentence of ten years to life.      See Okla. Stat. tit. 21, § 701.4 (repealed July 24,

1976). Cotten and his codefendant perfected direct appeals, and the Oklahoma

Court of Criminal Appeals upheld their convictions.         Riggle v. State , 585 P.2d

1382 (Okla. Crim. App. 1978).

       In November 1995, Cotten filed this federal habeas petition. He argued

that his indeterminate sentence of ten years to life should be modified to a

determinate ten-year term. He contended the indeterminate sentence was

unconstitutional under        White v. State , 774 P.2d 1072 (Okla. Crim. App. 1989),

despite our decision in       Murray v. Cowley , 913 F.2d 832 (10th Cir. 1990)




       Cotten also filed an application to proceed in forma pauperis. However,
       1

before the application was ruled upon in this court, he paid his fee in full.

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(upholding such a sentence under § 701.4, and distinguishing        White as involving

its successor, Okla. Stat. tit. 21 § 701.9). Based upon his understanding of    White ,

he argued his sentence was controlled by Okla. Stat. tit 57, § 353, and that he

“was not eligible for the indeterminate sentence because the sentence was

imposed by the judge and not the jury.”    2
                                               R. Vol. I, Tab 2. Cotten also argued

that he was fundamentally prejudiced at trial because the State was allowed to

change its charge from first to second degree murder, but it was not required to

change the charging information, which contained inflammatory language related

to the elements of first degree murder. R. Vol. I, Tab 2.

       The State first filed a motion to dismiss based on failure to exhaust. R.

Vol. I, Tab 5. According to the State, Cotten had filed a similar petition in state

court, which the Oklahoma trial court denied because Cotten had failed to raise

the issues either in his direct appeal or in his first state habeas petition. The State

then noted that, although Cotten attempted to appeal that denial, his appeal was

dismissed as untimely. Because Cotten could still apply for leave to appeal out of

time, the State contended that he had failed to exhaust his state remedies. The




       Cotten failed to note that a later decision by the Oklahoma Court of
       2

Criminal Appeals confirmed that the more specific law in effect at the time the
offense was committed governs the sentencing. See Bowman v. State, 789 P.2d
631 (Okla. Crim. App. 1990) (applying the identical provision under which Cotten
was sentenced).

                                            -3-
magistrate judge disagreed, finding that Cotten had exhausted his state remedies.

Id. , Tab 7.

       After Cotten filed an amended petition, the State filed its response, this

time arguing a procedural bar.    Id. , Tab 11. In support, the State noted the

following: Cotten had filed a total of four state court petitions for post conviction

relief; the first in 1985, the second in 1989, the third in 1990, and the fourth in

1995. Each was denied, but Cotten properly appealed only the first denial. R.

Vol. I, Tab 11 at 1-2 & Ex. A. The State argued that Cotten’s untimely appeal of

the trial court’s denial of his fourth petition, which raised the same issues he

sought to raise in his federal petition, resulted in a dismissal of that appeal based

on adequate and independent state grounds. In his responsive filings, Cotten

claimed he did not receive notice of the court’s denial until after the appeal

period had run; therefore, his untimely appeal was due to no fault of his own.     3
                                                                                       He

also contended that the trial court’s denial was erroneous, since his sentencing

claim was based on the 1989 Oklahoma Court of Criminal Appeals decision in

White v. State . 4




       The copy of the trial court’s order, submitted by both Cotten and the State,
       3

does not include a certificate of mailing to Cotten. R. Vol. I, Tab 11, Ex. A.
       4
        However, he offered no excuse or explanation for his failure to timely
raise the issue related to the allegedly inflammatory information.

                                           -4-
      Finding that Cotten had failed to show cause and actual prejudice, or a

fundamental miscarriage of justice, the magistrate judge recommended the

dismissal of Cotten’s petition as procedurally barred. Cotten filed objections in

which he summarily claimed cause, prejudice, and fundamental miscarriage of

justice. After conducting a de novo review, the district court adopted the

magistrate judge’s recommendations.

      In this appeal, Cotten reiterates the conclusory arguments set out in his

objections to the magistrate judge’s recommendations. Having thoroughly

reviewed the record, we agree with the district court’s conclusions. Cotten’s

protestations do not satisfy the requirements of cause and actual prejudice as set

forth in Coleman v. Thompson , 501 U.S. 722, 750 (1991). Nor has he shown any

fundamental miscarriage of justice.   See Gilbert v. Scott , 941 F.2d 1065, 1068 n.2

(10th Cir. 1991).

      Accordingly, we DENY the certificate of appealability and DISMISS the

appeal.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




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