                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       October 19, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    CHARLES A. M ERRELL, JR.,

                Petitioner-A ppellant,

    v.                                                    No. 06-6121
                                                   (D.C. No. 05-CV-1318-M )
    RANDALL G. W ORKM AN, W arden,                       (W .D. Okla.)

                Respondent-Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.




         Charles M errell, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

28 U.S.C. § 2254 petition for writ of habeas corpus. M errell also requests

permission to proceed in forma pauperis (IFP) on appeal. Because we conclude




*
       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 This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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;
nevertheless, an order may be cited under the terms and conditions of 10th Cir. R.
36.3.
M errell has failed to make “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and dismiss the

appeal. We grant his motion to proceed IFP on appeal.

      M errell was convicted by an Oklahoma state court jury of robbery in the

first degree after former conviction of two or more felonies. He was sentenced to

a forty-year term of imprisonment, and his conviction was affirmed on direct

appeal by the Oklahoma Court of Criminal Appeals (OCCA). M errell sought

state post-conviction relief, which was denied and affirmed on appeal. He then

brought a § 2254 petition in federal district court, asserting ineffective assistance

of appellate counsel 1 and denial of due process as a result of trial court errors. 2

After de novo review, the district court adopted the magistrate judge’s report and

recommendation, denying M errell’s petition for habeas relief. The district court




1
      In grounds one and two of his petition, M errell contended that his appellate
counsel was ineffective for failing to raise the following six claims on direct
appeal: lack of jurisdiction; ineffective assistance of trial counsel; improper
references to his post-arrest silence; failure to disclose evidence; denial of a
speedy trial; and denial of his right of confrontation. He also claimed that his
appellate counsel’s ineffectiveness was “cause” for his procedural default of these
underlying issues. See Coleman v. Thom pson, 501 U.S. 722, 750 (1991).
2
       In ground three of his petition, M errell alleged a due process claim based
on the following asserted trial court errors: prosecutorial misconduct; refusal of a
requested jury instruction on eyewitness identification; and refusal of a requested
jury instruction on hearsay.

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also denied his request for a COA. M errell now seeks a COA from this court,

raising the same claims. 3

      In deciding whether to issue a CO A, we limit our examination to “a

threshold inquiry into the underlying merit of [the petitioner’s] claims.”

M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). Our standard of review depends

on whether the district court decided a claim on the merits or dismissed a claim

on procedural grounds. Slack v. M cDaniel, 529 U.S. 473, 484-85 (2000). W here

the district court rejects a constitutional claim on the merits, the “substantial

show ing of the denial of a constitutional right” required for issuance of a COA

requires the petitioner to demonstrate that reasonable jurists would find the

district court’s assessment of his claims debatable or w rong. Id. at 484. W here

the district court denied habeas relief on procedural grounds, the petitioner must

show that jurists of reason would find it debatable whether 1) the district court

was correct in its procedural ruling; and 2) the petition states a valid claim for the

denial of a constitutional right. Id. at 484-85. Here, the district court held that

some of M errell’s claims were procedurally defaulted, and that the remaining

claims failed to meet the strict standard for relief under § 2254.



3
       In his A pplication for Certificate of Appealability, M errell organizes his
claims somewhat differently than he did in his petition to the district court.
However, based on a fair and liberal reading of his pleading, we conclude that he
raises all of the same claims that he asserted below. See Ledbetter v. City of
Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003) (construing pro se pleading
liberally).

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      In state post-conviction proceedings, the O CCA held that six of M errell’s

claims were procedurally barred because he did not raise them on direct appeal.

W here a petitioner has procedurally defaulted a claim based upon independent

and adequate state grounds, the claim may be raised in habeas only if the

petitioner can demonstrate cause for the default and actual prejudice, or that

failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thom pson, 501 U.S. 722, 750 (1991). In his district court petition,

M errell did not challenge the adequacy or independence of the procedural bar

applied by the OCCA. 4 He did, however, assert that his appellate counsel’s

constitutionally ineffective assistance was “cause” for his default of these claims.

See H ickm an v. Spears, 160 F.3d 1269, 1272 (10th Cir. 1998) (“Attorney error

amounting to constitutionally ineffective assistance of counsel constitutes ‘cause’

for a procedural default.”).

      In order to prevail on an ineffective assistance of counsel claim, a habeas

petitioner must show that his counsel’s conduct “fell below an objective standard

of reasonableness” and that such deficient performance resulted in prejudice to

the defense— that is, “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

4
      Nor did M errell attempt to make a colorable showing of factual innocence,
in order to establish a fundamental miscarriage of justice. See H ickman v. Spears,
160 F.3d 1269, 1275 (10th Cir. 1998).

                                         -4-
      The OCCA reviewed on the merits and denied M errell’s ineffective

assistance of appellate counsel claim in state post-conviction proceedings.

In doing so, the OCCA expressly applied the standard in Strickland. A district

court reviewing a claim in a habeas petition must defer to the state court’s prior

adjudication, and may grant relief only if the state court’s decision “w as contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the U nited States,” 28 U.S.C. § 2254(d)(1),

or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). Thus, the

district court concurrently reviewed M errell’s ineffective assistance claim on the

merits and analyzed whether it constituted cause for his procedural defaults.

See Hickman, 160 F.3d at 1273. It held that M errell failed to show he received

constitutionally ineffective assistance of counsel in his direct appeal, and

therefore M errell also failed to establish cause for his procedural default of the

underlying claims.

      M errell’s remaining due process claims–relating to prosecutorial

misconduct and the refused jury instructions–were reviewed on the merits and

denied on direct appeal by the O CCA. In order to succeed in habeas on these

claims, M errell must establish that one or more errors so infected the trial w ith

unfairness that the resulting conviction was a denial of due process. See Smith v.

M ullin, 379 F.3d 919, 927-28 (10th Cir. 2004) (finding no denial of due process

                                          -5-
as a result of prosecutor’s improper statements); Neely v. Newton, 149 F.3d 1074,

1085-86 (10th Cir. 1998) (finding no denial of due process based on failure to

give jury instruction). Again, the district court reviewed these claims on the

merits, giving due deference to the prior state court decision under § 2254(d), and

concluded there was no basis for habeas relief.

      W e have carefully reviewed petitioner’s briefs, the magistrate judge’s

report and recommendation, the district court’s disposition, and the entire record

on appeal. Nothing in the facts, the record, or the briefs raises an issue which

meets our standards for the grant of a certificate of appealability. W e do not

believe that reasonable jurists would find the district court’s conclusions

debatable or wrong, either as to the procedural default or as to the merits of

M errell’s ineffective assistance of appellate counsel and the other non-defaulted

claims. Slack, 529 U.S. at 484-85.

      M errell also seeks permission to proceed IFP in this appeal. In order to do

so, he must show “a financial inability to pay the required fees and the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997) (quotation marks omitted). The district court denied M errell’s motion for

leave to proceed IFP because he failed to file the affidavit required by 28 U.S.C.

§ 1915(a)(1). M errell has filed the necessary affidavit in this court and we




                                         -6-
conclude that he has made reasoned, nonfrivolous arguments in support of some

of his claims.

      Because M errell has failed to make a substantial showing of the denial of

a constitutional right, we DENY his petition for a COA and DISM ISS the appeal.

H is m otion to proceed IFP is G RANTED.


                                      Entered for the Court
                                      ELISABETH A. SHUM AKER, Clerk


                                      By:
                                               Deputy Clerk




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