                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                  FEB 10 1999
                                        TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 RANDALL C. FAITH,

           Petitioner - Appellant,
 v.                                                             No. 98-7055
 RON WARD,                                                (D.C. No. 95-CV-92-B)
                                                               (E.D. Okla.)
           Respondent - Appellee.




                                     ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       Petitioner Randall C. Faith seeks a certificate of probable cause1 to appeal the

district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus.


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
       1
         Petitioner’s brief actually requests a certificate of appealability allowing him to
proceed on appeal. Because Petitioner filed his petition prior to enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244, we construe
his request as one for a certificate of probable cause.
We conclude Petitioner has not made a substantial showing of the denial of a federal

right. Accordingly, we deny his request for a certificate of probable cause and dismiss the

appeal.

       Petitioner is an inmate at the Mack Alford Correctional Center in Stringtown,

Oklahoma, where he is serving one ten-year and two concurrent fifteen-year sentences for

three counts of lewd molestation. Subsequent to pleading guilty and being sentenced on

the above counts, Petitioner unsuccessfully sought post-conviction relief from the

Oklahoma state courts. On February 28, 1995, Petitioner filed an application for a writ of

habeas corpus in the United States District Court for the Eastern District of Oklahoma. In

support of his application, Petitioner argued that: (1) he did not receive a full and fair

hearing on the issues he raised in his state court post-conviction applications; (2) his plea

was involuntary; (3) the information failed to charge a crime or confer jurisdiction upon

the court; (4) his plea was based on statements made under duress and in violation of the

Fifth Amendment; (5) he received ineffective assistance of counsel; (6) he was

improperly denied court-appointed counsel on appeal; and (7) he was denied an appeal in

violation of the Due Process Clause.

       The district court referred the cause to a magistrate. In a thorough and

well-reasoned report, the magistrate addressed Petitioner’s claims and recommended the

petition be dismissed. The district court adopted the magistrate’s recommendation and

dismissed the petition. On appeal, Petitioner argues that: (1) the state courts and district


                                               2
court erroneously found some of his claims procedurally barred; (2) he was denied

effective assistance of counsel on his first appeal; (3) the criminal information fails to

confer subject matter jurisdiction on the court because it does not allege facts covering

the essential elements of the offenses with which he was charged; (4) his plea was

involuntary; and (5) his trial counsel was ineffective.

       We have reviewed Petitioner’s brief, his application for a certificate of probable

cause, the district court’s order, the magistrate’s recommendation and the entire record

before us. We conclude the district court properly relied on the state courts’

determination that some of Petitioner’s claims were procedurally barred because

Petitioner failed to raise them on direct appeal. See United States v. Allen, 16 F.3d 377,

378 (10th Cir. 1994). We further conclude that Petitioner’s ineffective assistance of

counsel claim is barred because he failed to raise it in his first application for post-

conviction relief and has shown no cause for failing to do so. Moore v. Reynolds, 153

F.3d 1086, 1097 (10th Cir. 1998). Moreover, Petitioner’s failure to provide any evidence

of actual innocence further prevents us from considering his procedurally barred claims

under the fundamental miscarriage of justice exception. See Herrera v. Collins, 506 U.S.

390, 404 (1993) (fundamental miscarriage of justice exception available only where

prisoner supplements constitutional claim with colorable showing of factual innocence).




                                               3
         In order for a certificate of probable cause to issue, Petitioner must show a

substantial showing of the denial of a federal right, ie., that the district court’s decision is

debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of

further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Petitioner

has made no such showing. Accordingly, his request for a certificate of probable cause is

DENIED and his APPEAL DISMISSED.

                                                    Entered for the Court,



                                                    Bobby R. Baldock
                                                    Circuit Judge




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