                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 BILLY RAY WHITE,

          Petitioner - Appellant,
 v.                                                      No. 01-5064
                                                   (D.C. No. 97-CV-706-H)
 RON WARD,                                               (N.D. Okla.)

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


      Billy Ray White, an inmate appearing pro se, seeks to appeal from the

denial of his habeas petition, 28 U.S.C. § 2254. Because Mr. White has failed to

make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his application for a certificate of appealability (“COA”)

and dismiss the appeal.    Slack v. McDaniel , 529 U.S. 473, 483 (2000).


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
       Mr. White was convicted of first degree manslaughter in state district court,

and sentenced to life imprisonment in accordance with the jury’s

recommendation.      See Okla. Stat. Ann. § tit. 21, § 711(3) (1991). Mr. White

represented himself at trial, standby counsel only rendered procedural guidance.

R. Doc. 9 at 462. Mr. White’s conviction and sentence were affirmed by the

Oklahoma Court of Criminal Appeals (OCCA) in a summary opinion on direct

appeal. R. Doc. 7, Ex. A. His federal habeas petition was referred to a magistrate

judge who recommended that the petition be denied. The district court adopted

the magistrate’s report and recommendation, denying the petition and entering

judgment for the respondent. We deny a COA for substantially the same reasons

contained in the report and recommendation. R. Doc. 22.

       On appeal, Mr. White raises the same claims raised before the OCCA, and

in his federal habeas petition. In addition he claims that he is actually innocent

because he acted in self defense (he perpetrated the death of the victim

necessarily), relying upon cases involving exceptions to procedural bar. Aplt. Br.

at 35-36 (citing, for example,    Murray v. Carrier , 477 U.S. 478, 496 (1986)). This

claim was not raised below so it is waived; regardless, none of Mr. White’s

claims in his federal habeas petition were rejected on grounds of procedural bar.

R. Doc. 22 at 3. Moreover, any claim for relief based upon actual innocence must

be linked to a constitutional violation,   LaFevers v. Gibson , 238 F.3d 1263, 1265


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n.4 (10th Cir. 2001), and we have found none.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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