                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 15 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 STEPHEN C. BURNETT,

          Petitioner-Appellant,
 v.                                                     No. 00-5213
                                                  (D.C. No. 96-CV-334-H)
 STEVE HARGETT and STEVEN                               (N.D. Okla.)
 KAISER,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Petitioner-Appellant Stephen Burnett (“Burnett”) appeals the district

court’s denial of his Petition for a Writ of Habeas Corpus filed pursuant to 28

U.S.C. § 2254 . The district court determined that Burnett’s claims, ineffective

assistance of counsel and fundamental unfairness, were procedurally barred due to

Burnett’s failure to timely raise both issues in the Oklahoma state courts, and that


      *
         After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Burnett could not demonstrate facts sufficient to get around the procedural bar.

While we disagree somewhat with the district court’s analysis and address one

issue left untouched by the district court, we nevertheless AFFIRM the district

court’s dismissal of the claims as procedurally barred.



                                 BACKGROUND

      A. Consolidated Habeas Petitions

      Petitioner-Appellant Stephen Burnett (“Burnett”) filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 on February 13, 1996, requesting

habeas relief from his state conviction for malicious injury to property. This

petition was assigned Case No. 96-CV-334-H. He also filed a separate petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 21, 1997,

challenging his state conviction for larceny of an automobile. This second

petition was assigned Case No. 97-CV-374-K. Burnett had received a sentence of

five years on the first charge and a sentence of fifteen years on the second, with

both sentences to be served consecutively to the life sentence he received after

pleading guilty to murdering his estranged wife. See Burnett v. Hargett, No. 96-

CV-334-H, slip op. at 2 (N.D. Okla. Oct. 6, 2000) (“Burnett III”) (Doc. 26).

Because the two habeas actions arose from a single state court proceeding, the

district court ordered them consolidated on March 13, 1998. (See Doc. 13.) The


                                        -2-
two actions, consolidated into Case No. 96-CV-334-H, were ultimately dismissed

on the same grounds by the district court; we thus refer to them collectively

throughout this Order and Judgment as claims brought in “the Petition.”



      B. State Court Proceedings

      Although Burnett pled guilty in state court to both charges, and did not file

a direct appeal of his convictions, he did pursue state post-conviction relief as to

both charges. 1 See Burnett III, slip op. at 2.

      In his state post-conviction proceeding related to the malicious injury to

property charge, Burnett argued that the trial court did not establish the necessary

factual basis for his guilty plea for malicious injury to property, and thus that the

plea should never have been accepted by the court. (See generally Doc. 5, Ex. A

(Application for Post-Conviction Relief).) Specifically, he argued that he was the

joint owner of the damaged property and thus could not have been found guilty

for damaging the property “of another.” (See id. at 3-4.) He also argued in a

roundabout manner that his guilty plea was tainted by the ineffective assistance of

his attorney, who did not tell him that “ownership or co-ownership of the property

would prohibit prosecution.” (See Doc. 5, Ex. C, at 5 (Brief in Support of


      1
         Burnett did not pursue state post-conviction relief for the life sentence he
received for murdering his wife, nor does he challenge that conviction or sentence
in the instant Petition.

                                          -3-
Petition in Error).) The only other references to his attorney’s performance were:

(1) a statement that he “was not informed by counsel or the sentencing court that

ownership or co-ownership of the property would prohibit prosecution;” and (2)

an assertion that he “pled [guilty] without being properly and accurately informed

of the appropriate legal principles, and after misleading and inaccurate

information was presented to the Magistrate.” (See id.) All of these statements

were contained in a section of Burnett’s brief entitled: “The Trial Court Erred

When it Failed to Ascertain that There was a Factual Basis for the Plea of Guilty,

in Violation of the Oklahoma and United States Constitution[s].”

      The state court denied his application for post-conviction relief on the

malicious injury to property charge because it found the claims procedurally

barred (see Doc. 5, Ex. B, at 3), and that holding was affirmed on appeal.

      Burnett also argued in a separate state post-conviction proceeding that his

conviction on the second charge, larceny of an automobile, was fundamentally

unfair because he owned the automobile in question. He did not specifically

argue at that time that this conviction was tainted by ineffective assistance of

counsel, however. Burnett’s only references to his counsel’s performance were

again contained in a section of his brief entitled: “The Trial Court Erred When it

Failed to Ascertain that There was a Factual Basis for the Plea of Guilty, in

Violation of the Oklahoma and United States Constitution[s].” The entirety of


                                         -4-
Burnett’s argument regarding his attorney’s performance consisted of the

following two statements: (1) “Petitioner was not informed by counsel or the

sentencing court that ownership or co-ownership of the property (automobile)

would prohibit prosecution. Had counsel properly informed Petitioner of [the

elements of the larceny statute], or had counsel informed the sentencing court that

Petitioner was the owner/co-owner of the automobile, the entry of the plea should

have been prohibited by the sentencing judge;” and (2) “In the instant case,

Petitioner pled without being properly and accurately informed of the appropriate

legal principles, and after misleading and inaccurate information was presented to

the Magistrate.” (See Petition in Error submitted to the Oklahoma Court of

Criminal Appeals, at 5.)

      The state court denied Burnett’s application for state post-conviction relief

on the larceny conviction on the ground that he had procedurally defaulted this

claim of fundamental unfairness by failing to raise it on direct appeal. (See Doc.

20 at 2 (June 24, 1999, Order).) It did not address Burnett’s veiled claims of

counsel’s ineffectiveness.



      C. Initial District Court Proceedings

      In his federal Petition, Burnett for the first time argued that he had an

“extremely confused mental state of mind” at the time of his arrest and conviction


                                         -5-
on both charges due to his use of anti-depressant medication and alcohol. (See

Doc. 1, Petition, at 5-A.) He also argued for the first time that, in regard to his

malicious injury to property charge, his attorneys encouraged him to lie about the

ownership of his house and about his mental state at the time of the plea hearing.

(See id. at 5-B.) He further stated: “My counsel was ineffective in that they

encouraged me to plead guilty to something that was not even a crime and

‘coached me’ in how to present this to the judge at the plea bargain proceeding.”

(See id. at 5-C.). Burnett raised similar issues regarding the larceny of an

automobile charge, arguing that his attorney failed to present evidence that

Burnett actually owned the vehicle that he allegedly stole, and thus that the

proceeding resulting in his conviction on that charge was fundamentally unfair.

(See Doc. 20 at 3-4, 8 (June 24, 1999, Order).)

      On September 6, 1996, the State of Oklahoma filed a motion to dismiss

Burnett’s Petition relating to the malicious injury to property conviction, arguing

that he had failed to exhaust his state remedies regarding the claims presented in

the Petition. 2 (See Doc. 5.) The district court, after finding that the Petition

raised two claims that had not been “fairly presented” to the state courts, i.e.,

ineffective assistance of counsel and an involuntary plea due to Burnett’s use of


      2
         This motion encompassed only the malicious injury to property habeas
action, Case No. 96-CV-334-H, because it was filed before the two habeas actions
were consolidated.

                                          -6-
anti-depressant medication, granted the motion to dismiss for failure to exhaust

state remedies on July 31, 1997. See Burnett v. Hargett, No. 96-CV-334-H, slip

op. at 5 (N.D. Okla. July 31, 1997) (“Burnett I”) (Doc. 9).



      D. First Tenth Circuit Appeal

      Burnett appealed that decision to this court on August 11, 1997. (See Doc.

10.) In his appeal he specifically disclaimed any argument that his plea was

involuntary, and relied solely upon his claim of ineffective assistance of counsel.

See Burnett v. Hargett, No. 97-5156, 1998 WL 88153, at **9 (10th Cir. Feb. 26,

1998) (unpublished opinion) (“Burnett II”).

      On February 26, 1998, we issued an Order and Judgment in which we

agreed that Burnett had failed to exhaust his state remedies, but found that it

would be futile to require Burnett to return to the state courts because the state

courts would find the contested claims procedurally barred. See generally Burnett

II. We then stated:

             Also, Burnett’s federal habeas claim of ineffective assistance
      is not barred in federal court by the state procedural default arising
      from Burnett’s failure to allege the ineffective assistance claim in a
      direct appeal. The Tenth Circuit has refused to impose a procedural
      bar in federal court against federal habeas claims or ineffective
      assistance under circumstances similar to those presented here, ruling
      that Oklahoma’s judicial doctrine that refuses to consider ineffective
      counsel claims on collateral review is not an “adequate” state-law
      ground creating a procedural bar in federal court. See Breechan v.
      Reynolds, 41 F.3d 1343, 1362 (10th Cir. 1994). Thus, Burnett’s

                                         -7-
      failure to comply with Oklahoma’s judicial doctrine requiring him to
      raise his claim of ineffective assistance in direct appeal will not
      procedurally bar him from raising the claim in a proper federal
      habeas petition.

See Burnett II, at **7 n.6 (emphasis added).



      E. District Court on Remand

      On remand, the district court addressed the question of whether the

ineffective assistance of counsel claims raised in Burnett’s Petition were

procedurally barred due to Burnett’s failure to raise them not only on direct

appeal, which this court had stated in Burnett II would not bar the claims, but also

in his state application for post-conviction relief, which this court had not

addressed in Burnett II. The district court noted that, even though Burnett did not

raise his ineffective assistance of counsel claims on direct appeal, the court

“would not be precluded from considering this claim on the merits had [Burnett]

raised the claim in his post-conviction action.” (See Doc. 20 at 6 (June 24, 1999,

Order).) Burnett, however, had also failed to raise the claim in his state post-

conviction proceedings, “thereby defaulting his claim a second time.” (See id.)

The district court thus concluded:

      [W]ere Petitioner to return to state court to raise this claim in a
      second post-conviction application, the state courts would
      undoubtably rule that the claim had been waived as a result of
      Petitioner’s procedural default. That finding would be based on an


                                         -8-
        “independent” and “adequate” state procedural rule and this Court
        must recognize the default in this case.

(Id.)

        In response to Burnett’s claim of fundamental unfairness regarding his

conviction for larceny of an automobile, the district court stated that Burnett had

procedurally defaulted that claim by failing to raise it on direct appeal, such that

the claim was procedurally barred in a federal habeas proceeding. 3 (See id. at 8.)

        The court then noted, however, that Burnett could overcome the procedural

bar on his claims of ineffective assistance on the malicious injury to property

charge and fundamental unfairness on the larceny of an automobile charge, if he

could demonstrate cause and prejudice to explain his failure to present the claims

to the state courts, or if he could demonstrate that a failure to review his claim

would result in “a fundamental miscarriage of justice.” (See id. at 6.) In order to

demonstrate a fundamental miscarriage of justice, Burnett would have to make a

colorable demonstration that he was actually innocent of the offenses of which he

was convicted. (See id. at 7.) Because it appeared to the district court that

Burnett was not arguing cause and prejudice, but was instead arguing actual

innocence to get around the procedural bar, the district court ordered briefing



        3
         The district court did not address Burnett’s allusions to his counsel’s
ineffectiveness contained in his state post-conviction petition, as well as his
federal habeas petition, related to the larceny of an automobile charge.

                                         -9-
from all parties on whether Burnett could make a colorable demonstration to that

effect. (See id. at 7-8.)

      After reviewing the briefs of both parties, the district court denied

Burnett’s Petition as procedurally barred on October 6, 2000. See Burnett III, slip

op at 10. The district court found that Burnett could not make a colorable claim

of factual innocence to get around the procedural bar which resulted from

Burnett’s failure to present his claims to the state courts.

      In regard to his claim of actual innocence on the charge of malicious injury

to property, the district court found that Burnett was charged with damaging both

the jointly owned property (e.g., the house) of Burnett and his spouse, Betty

Burnett, and the personal property (e.g., the clothing) of Betty Burnett. (See id. at

7.) In choosing to plead guilty to that charge, Burnett thus pled guilty to

malicious injury to the personal property of Betty Burnett, in which Burnett

himself had no legitimate ownership interest. (See id.) The district court

therefore found that, regardless of Burnett’s argument that he co-owned the house

in which the crime occurred, Burnett had not made a colorable claim that he was

factually innocent of that charge because he had not “presented evidence

sufficient to establish that ‘it is more likely than not that no reasonable juror

would have convicted him.’” (Id. at 8.)




                                          - 10 -
      Regarding the conviction for larceny of an automobile, the district court

noted that, while the automobile’s title papers identified the owner as “Burnett,

Stephen C or Elizabeth,” Burnett had previously testified that when placing the

body of his slain wife into the trunk of the vehicle (after he had shot her twice in

the chest and head) he knew he was stealing the vehicle. Specifically, Burnett

testified: “I did realize this was her car and not mine. I did not have permission to

take it. I was in effect stealing the car.” (See id. at 8-9.) Under Oklahoma law,

the elements of larceny of an automobile are: (1) trespassory; (2) taking; (3)

carrying away; (4) an automobile; (5) of another; (6) with intent to steal. (See

id. at 9.) Because Oklahoma law defines the phrase “property of another” as “one

who has lawful possession as against the rights of the taker, without regard to

ownership,” and because it was clear from Burnett’s testimony that Betty Burnett

enjoyed possession of the vehicle after the couple separated, the district court

found that “a reasonable juror could find that Petitioner’s proprietary interest in

the car was relegated to the superior possessory interest of his wife, or of her

estate.” (Id.) Accordingly, the district court concluded that Burnett had not made

a colorable claim of factual innocence sufficient to get around the procedural bar.




                                         - 11 -
      F. Additional Procedural Facts

      Burnett filed a timely notice of appeal and application for a certificate of

appealability (“COA”), as required by 28 U.S.C. § 2254. (See Doc. 28.) The

district court denied a COA. (See Doc. 31.) The district court also denied

Burnett’s motion to proceed on appeal in forma pauperis. (See Doc. 31.)

Appellant then filed with this court a motion to proceed in forma pauperis and a

second application for COA.

      Under the provisions of the Antiterrorism and Effective Death Penalty Act

(AEDPA) a state prisoner appealing a district court’s denial of habeas relief under

§ 2254 must obtain a COA before we may consider the merits of his claim. 4 See

28 U.S.C. §2253(c)(1)(A), (B). A court may issue a COA “only if the applicant

has made a substantial showing of a denial of a constitutional right.” See 28

U.S.C. §2253(c)(3).

      Because we found that Burnett had made the required “substantial showing

of a denial of a constitutional right,” we granted a COA in this case and ordered

responsive briefing from the State of Oklahoma addressing the following three

issues: (1) whether Burnett’s claim of ineffective assistance of counsel on the



      4
         The standards for granting a COA set forth in AEDPA apply to this case
because Burnett initiated the instant appeal of the district court’s dismissal of his
Petition on October 18, 2000, after the effective date of AEPDA. See Slack v.
McDaniel, 529 U.S. 473, 481 (2000).

                                        - 12 -
malicious injury charge is procedurally barred not because he failed to raise it on

direct appeal, a contention we rejected in Burnett II, but because he also failed to

raise it in his state post-conviction proceedings; (2) whether Burnett had argued

ineffective assistance of counsel on the larceny of an automobile charge either in

his state post-conviction proceedings or in his federal habeas petition, and, if not,

whether he was procedurally barred from presenting that argument to this court;

and (3) whether, if we reach the merits of Burnett’s ineffective assistance of

counsel claims, he can prevail on those claims. (See Burnett v. Hargett, No. 00-

5213, slip op. at 2-3 (10th Cir. Feb. 27, 2001) (unpublished Order).)

      In its brief in response to this court’s Order, the State of Oklahoma

addressed only the first two issues, stating in regard to the third issue: “Based on

the foregoing arguments, the merits of Petitioner’s claims of ineffective

assistance of counsel are barred from review by this Court. Accordingly, this

Court’s third question to Respondent regarding the merits of the claims need not

be addressed.” (See Respondent’s. Br. at 9.)



                                   DISCUSSION

      We have now carefully reviewed the submissions by both parties in this

case, as well as the complicated procedural history of the myriad of state and




                                         - 13 -
federal proceedings related to both of Burnett’s convictions, and determine that

Burnett is not entitled to habeas relief.



         A. Procedural Bar

               1. Fundamental Unfairness (Larceny of an Automobile)

         We agree with the district court that Burnett’s failure to raise on direct

appeal a claim of fundamental unfairness in regard to his conviction for larceny of

an automobile resulted in a procedural default of that claim. Accordingly, the

federal courts are procedurally barred from adjudicating that claim on the merits

unless Burnett can demonstrate cause and prejudice to get around the procedural

bar, or that a fundamental miscarriage of justice will occur if the merits of the

claim are not addressed. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir.

1998).

               2. Ineffective Assistance of Counsel (Malicious Injury to Property
                  and Larceny of an Automobile)

         This issue presents a much harder procedural bar question given the

Oklahoma courts’ treatment of ineffective assistance of counsel claims that are

not raised for the first time on direct appeal. After a careful review of the record,

we find that we are bound by our prior precedent to a conclusion that Burnett has

procedurally defaulted both of his ineffective assistance of counsel claims and



                                            - 14 -
that, absent a showing of cause and prejudice or fundamental miscarriage of

justice, we are procedurally barred from adjudicating those claims on the merits.

                    a.     The issue was not fairly presented to the state courts

      As we previously stated in Burnett II, the language in Burnett’s state post-

conviction petition alluding to Burnett’s counsel’s ineffective assistance on the

malicious injury to property conviction was not sufficient to fairly present that

issue to the Oklahoma state courts. See Burnett II, at **5. We therefore held in

that opinion that Burnett had failed to exhaust his state opportunities for arguing

that his state conviction for malicious injury to property was tainted by the

ineffective assistance of counsel. See id., at **6. We nevertheless held that it

would be futile to send Burnett back to the state courts to exhaust his ineffective

assistance of counsel claim because the state courts would find the issue

procedurally barred, based upon Burnett’s failure to argue it on direct appeal, and

thus that the district court was not barred by the exhaustion requirements of 28

U.S.C. § 2254(c) from reviewing that claim. See id., at **7. Accordingly, we

remanded the case to the district court to determine whether Burnett was entitled

to relief on that basis. See id.

      Our decision in Burnett II addressed only Burnett’s challenge to his

malicious injury to property conviction because Burnett appealed the district

court’s denial of his habeas clams prior to the consolidation of that petition, Case


                                         - 15 -
No. 96-CV-334-H, with the second federal habeas petition dealing with his

larceny of an automobile conviction, Case No. 97-CV-374-K. The first question,

then, is whether Burnett’s claims of ineffective assistance relating to the second

charge, larceny of an automobile, were similarly not fairly presented to the state

courts for review such that they would also be potentially procedurally barred

from federal habeas review. 5

      The district court did not address Burnett’s allusions to his counsel’s

ineffectiveness set forth in his state post-conviction petition on the larceny of an

automobile conviction. We note, however, that the language contained in that

petition and relating to Burnett’s counsel’s performance was identical to the

language used in his state post-conviction petition on the malicious injury to

property charge. As stated in Burnett II, such language was not sufficient to



      5
         We reject the state’s argument, contained in its brief to this court (see
Respondent’s Br. at 21), that Burnett did not argue his counsel’s ineffectiveness
in the federal habeas petition relating to his larceny of an automobile conviction.
Burnett stated in his petition related to the larceny conviction, “Petitioner was not
informed by counsel or the sentencing court that ownership or co/ownership of
the property (automobile) would prohibit prosecution. Had counsel properly
informed petitioner of the principles of [21 Okla. Stat. § 1720 (the automobile
larceny statute)], or had counsel informed the sentencing court that petitioner was
the owner/co-owner of the automobile, the entry of the plea should have been
prohibited by the sentencing judge.” (See Petition for a Writ of Habeas Corpus,
No. 97-CV-374-K, at 5-B.) Given the rules of liberal construction afforded to pro
se filings, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we think these
statements were sufficient, albeit barely, to raise the issue of ineffective
assistance of counsel.

                                        - 16 -
fairly present the issue of Burnett’s counsel’s performance to the Oklahoma state

courts in regard to the malicious injury to property charge. See Burnett II, at **5.

We similarly find that the language is not sufficient to have fairly presented the

issue to the Oklahoma courts in his petition challenging the larceny of an

automobile conviction. We nevertheless maintain, as we did in Burnett II, at **7

& n.6, that Burnett’s failure to fairly present these arguments on direct appeal

does not preclude the federal courts from addressing these claims on non-

exhaustion grounds because it would be futile to send Burnett back to state court

to exhaust his state court remedies.

                    b.    Effect of Burnett’s failure to argue ineffective assistance
                          of counsel in his applications for state post-conviction
                          relief

      The next question is whether Burnett’s ineffective assistance of counsel

claims related to his convictions for both malicious injury of property and larceny

of an automobile are procedurally barred not because he failed to raise them on

direct appeal, but because he also failed to raise them in his state post-conviction

petitions related to those convictions.

      We are inclined to think that Burnett never could have gotten his

ineffective assistance of counsel claims reviewed by the Oklahoma state courts

absent a direct appeal asserting those claims. Just as it would have been futile for

Burnett to file a second state habeas petition after his claims were initially


                                          - 17 -
dismissed by the federal district court for lack of exhaustion, it would have been

futile for him to raise the issues in his first state post-conviction petition because

the state courts would have refused to adjudicate that claim. We would thus also

be inclined to think the federal courts should not be barred from considering

Burnett’s claims of ineffective assistance of counsel merely because he failed to

raise the claims in his state post-conviction petitions. 6


      6
           Under the language of 28 U.S.C. § 2254(b)(3)(c), a state petitioner “shall
not be deemed to have exhausted the remedies available in the courts of the State
. . . if he has the right under the law of the State to raise, by any available
procedure, the question presented.” Furthermore, 28 U.S.C. § 2254 states that a
prisoner’s federal habeas petition,

      shall not be granted unless it appears that – (A) the applicant has
      exhausted the remedies available in the courts of the State; or (B) (i)
      there is an absence of State corrective process; or (ii) circumstances
      exist that render such process ineffective to protect the rights of the
      applicant.

18 U.S.C. § 2254(b)(1)(A)-(B). Applying these standards for exhaustion, Burnett
would appear to have exhausted his state court remedies     despite his failure to
raise the ineffective assistance of counsel claims in his state post-conviction
petitions. Because Burnett did not file a direct appeal of his convictions, he did
not have “the right under the laws of the State” to argue ineffective assistance in
his application for state post-conviction relief. Further, even if Burnett had raised
the ineffectiveness claim on collateral review, there would have been “an absence
of State corrective process” because of the Oklahoma courts’ refusal to entertain
such claims under these circumstances, and forcing Burnett to nevertheless raise
the issue just so the Oklahoma courts could reject it on procedural grounds would
have proven “ineffective to protect his rights.” We acknowledged these problems
with the Oklahoma state courts’ treatment of ineffectiveness claims when we
found in Burnett II that it would be futile to send Burnett back to the state courts
to argue ineffective assistance of counsel, and note the potential unfairness of
                                                                        (continued...)

                                          - 18 -
      It appears, however, that this issue was resolved in a contrary manner by

this court in Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998), and

Medlock v. Ward, 200 F.3d 1314, 1322-23 (10th Cir. 2000). In Moore, the

Oklahoma habeas petitioner had neglected to argue ineffective assistance of trial

counsel on direct appeal or in his first application for state post-conviction relief.

See 153 F.3d at 1096. He then filed a second state post-conviction petition in

which he argued that his trial counsel was ineffective, but the Oklahoma state

court “summarily rejected these arguments, concluding they were barred on the

grounds of res judicata” because they were not raised in the first petition. Id.

The Moore court found that, because the Oklahoma court’s refusal to adjudicate

the petitioner’s ineffectiveness claim was based upon his failure to raise it in his

initial habeas petition, and not upon his failure to raise it on direct appeal, the

Oklahoma courts were relying upon an “adequate and independent” state

procedural rule when they dismissed the petition. See id. at 1097 (citing 22 Okla.

Stat. § 1086 (“All grounds for relief available to a [habeas] applicant . . . must be

raised in his original, supplemental or amended application. Any ground finally



      6
        (...continued)
forcing habeas petitioners, as a prerequisite to federal review, to raise claims in
their state post-conviction petitions when it is both obvious and pre-ordained that
those claims will be dismissed summarily on procedural grounds that we have
previously found to be inadequate.      See Breechan v. Reynolds , 41 F.3d 1343,
1364 (10th Cir. 1994).

                                         - 19 -
adjudicated or not so raised . . . may not be the basis for a subsequent

application.”)). As such, the Moore court concluded that the petitioner’s claims

were procedurally barred from review by the federal courts. Similarly, in

Medlock, this court found an Oklahoma prisoner’s habeas claim of ineffective

assistance of counsel procedurally barred due to the petitioner’s failure to present

the issue either on direct appeal or in his application for state post-conviction

relief, and concluded that the petitioner “did not raise his present ineffective

assistance claim . . . in his application for state post-conviction relief, and

therefore it is barred under Oklahoma law.” See 200 F.3d at 1323 (citing 22

Okla. Stat. § 1086, 1089(D)(2)).

      Neither of these opinions identifies or discusses the troubling issue

discussed above: That by requiring habeas petitioners to have raised claims in

state post-conviction proceedings, even when those claims would inevitably have

been dismissed as procedurally barred on a ground that we have previously held

to be inadequate, we are forcing habeas petitioners to jump through needless

procedural hoops. See discussion supra p. 18 & n.6. We are nevertheless bound

by these decisions, absent en banc reversal by this court. See Bates v. Dep't of

Corr. of the State of Kan., 81 F.3d 1008, 1011 (10th Cir. 1996) (“[A] panel of this

Court is bound by a holding of a prior panel of this Court.”). We are therefore

forced to conclude that Burnett’s failure to raise his ineffective assistance of


                                          - 20 -
counsel claims in his applications for state post-conviction relief resulted in a

procedural bar of those claims on an adequate and independent state procedural

ground, such that we are procedurally barred from addressing those claims on

their merits “unless [Burnett] can demonstrate cause and prejudice or a

fundamental miscarriage of justice.” See Medlock, 200 F.3d at 1323 (citing

English, 146 F.3d at 1259).

      B. Fundamental Miscarriage of Justice

      As a means to get around the procedural bar resulting from his failure to

timely raise his fundamental unfairness and ineffective assistance of counsel

claims in the state courts, Burnett argues that he was factually innocent of the

charges for which he was convicted. Specifically, Burnett argues that, because he

was the co-owner of both the vandalized home and the stolen vehicle, he is legally

innocent of either damaging or stealing the property “of another” and thus should

not have been convicted of malicious injury to property or larceny of an

automobile.

      The district court addressed these arguments at great length and with great

care. See Burnett III, slip op. at 4-10. For substantially the same reasons as the

district court, we agree that Burnett has not made a showing of factual innocence

sufficient to get around the procedural bar because he has presented no evidence

from which we could conclude that “it is more likely than not that no reasonable


                                         - 21 -
juror would have convicted him” had he gone to trial on the contested charges. 7

See Schlup v. Delo, 513 U.S. 298, 327-28 (1995). As such, we are precluded

from further review of the merits of Burnett’s claims.



                                 CONCLUSION

      For the foregoing reasons, this appeal is DISMISSED.



                                      ENTERED FOR THE COURT


                                      David M. Ebel
                                      Circuit Judge




      7
         Even when considering the evidence of ownership that Burnett believes
his attorney should have offered in his defense, we find that Burnett has made no
colorable demonstration of actual innocence on either of the contested
convictions. Therefore, we find it highly unlikely that Burnett could have
demonstrated prejudice from his attorney’s allegedly ineffective assistance even if
we had determined that we were not procedurally barred from reviewing that
claim on the merits.

                                       - 22 -
