                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         January 9, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 JASON HUGHES,

               Petitioner-Appellant,             Nos. 05-6183 and 05-6215
          v.                                           (W.D. of Okla.)
 STEVEN BECK, Warden,                            (D.C. No. CV-04-1667-M)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      In October 2003, Petitioner-Appellant Jason Hughes entered five guilty

pleas in Oklahoma state court arising from a series of crimes. Following the

pleas, the state court sentenced Hughes to eight years imprisonment based on a

total of eight felonies and five misdemeanors, all to be served concurrently.




      *
         This order is not binding precedent, except under the doctrines of law of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.
      **
         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.
      Failing to file a direct appeal, Hughes filed for state post-conviction relief.

The Oklahoma district court denied relief. This denial was subsequently affirmed

by the Oklahoma Court of Criminal Appeals. Both Oklahoma courts deemed

Hughes’s claims waived, finding that all of his claims should have been brought

on direct appeal.

      Hughes then sought a writ of habeas corpus in federal court pursuant to 28

U.S.C. § 2254, asserting eight grounds for relief, including the following:

(1) Oklahoma state post-conviction procedures are inadequate and ineffective to

protect Hughes’s federal constitutional rights; (2) ineffective assistance of trial

counsel; (3) lack of jurisdiction by the state trial court based on Hughes’s

unlawful transfer between counties without a court order; (4) trial error in

accepting Hughes’s guilty pleas without informing Hughes that he would be

sentenced in excess of the minimum; (5) denial of due process; (6) Oklahoma

statutory language excludes Hughes’s crimes from punishment by incarceration;

(7) statutory language requiring parole consideration to be included in Hughes’s

sentence and failure by the state parole board to comply with this legislative

mandate; and (8) trial error in separating one continuous act into different counts

for purposes of sentencing.

      The federal district court denied the writ, finding that claim one and claims

three through eight were procedurally barred. With regards to the second claim,


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ineffective assistance of counsel, the district court reached the merits and

determined that because Hughes rendered his plea voluntarily, his claim failed.

                                          1.

      In December 2005, this court construed Hughes’s pro se pleadings, in

particular his ineffective assistance of counsel claim, possibly to include an

allegation of conflict of interest. This court granted a certificate of appealability

(“COA”) with respect to the conflict of interest claim, directing the government to

file a response. See 28 U.S.C. § 2253(c)(1).

      Since the grant of COA, this court has determined that Hughes failed to

properly raise the conflict of interest claim in the district court. Although we

must liberally construe a petitioner’s pro se pleadings, we “may not rewrite a

petition to include claims that were never presented.” Barnett v. Hargett, 174

F.3d 1128, 1133 (10th Cir. 1999). Specifically, Hughes’s ineffective assistance

of counsel argument before the district court plainly does not include a claim that

his counsel had a conflict of interest. Accordingly, that claim has been waived

and COA should not have been granted.

                                          2.

      We have also carefully reviewed the record with regard to claim one and

claims three through eight and agree with the reasoning set forth by the magistrate

judge precluding such claims as procedurally barred by Oklahoma state law. See


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Okla. Stat. tit. 22, § 1086 (“All grounds for relief available to an applicant under

this act must be raised in his original, supplemental or amended application. Any

ground . . . not so raised . . . may not be the basis for a subsequent application,

unless the court finds a ground for relief asserted which for sufficient reason was

not asserted or was inadequately raised in the prior application.”). According to

the district court, Oklahoma’s procedural bar rule is both adequate and

independent such that it precludes Hughes’s claims. The district court further

reasoned that Hughes could not overcome the procedural bar both because he

failed to demonstrate that any ineffectiveness on the part of his counsel

constituted cause for the default and he failed to show any fundamental

miscarriage of justice. We therefore conclude that Hughes has not made “a

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

§ 2253(c)(2); accord Slack v. McDaniel, 529 U.S. 473, 484 (2000) .

                                           3.

      Finally, the district court, in granting Hughes permission to proceed in

forma pauperis (“ifp”), required Hughes to pay the filing fee in accordance with

28 U.S.C. § 1915(b)(1). However, this court has previously concluded that the

Prison Litigation Reform Act, which amended 28 U.S.C. § 1915(b)(1) to impose

filing fee obligations on a “prisoner” who “brings a civil action or files an appeal

in forma pauperis,” is inapplicable to 28 U.S.C. § 2254 habeas corpus


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proceedings. McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th

Cir. 1997); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997),

overruled on other grounds by United States v. Hurst, 322 F.3d 1256 (10th Cir.

2003). Therefore, the district court should not have ordered Hughes to pay the

filing fee.

       Finding that Hughes is not entitled to habeas relief under § 2254, we

withdraw the prior grant of COA as improvidently granted. Accordingly, we

VACATE this court’s grant of COA and DISMISS the appeal as to all claims

raised by Hughes. We sua sponte VACATE the district court’s order granting ifp

to the extent that it required Hughes to pay the filing fee.

                                                Entered for the Court

                                                Per curiam




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