                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 9, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ALONIA MARION THREAT,

               Petitioner-Appellant,
                                                       No. 08-6164
 v.                                            (D.C. No. 5:08-CV-00158-HE)
                                                       (W.D. Okla.)
 DONNA LAYMON, Warden,

               Respondent-Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.


      Alonia Marion Threat, an Oklahoma state prisoner proceeding pro se,

appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition.

Because the district court denied Threat a certificate of appealability (“COA”), he

may not appeal the district court’s decision absent the grant of a COA by this

court. § 2253(c)(1)(A). For substantially the same reasons set forth by the

district court, we deny a COA and dismiss the appeal. 1




      1
        Although Threat did not apply to this court for a COA, we construe his
notice of appeal as a renewed application for a COA. Fed. R. App. P. 22(b)(2).
                                          I

      Threat is currently serving concurrent sentences arising out of his 2002 and

2005 Oklahoma state convictions for possession of a controlled dangerous

substance, each of which was imposed after a plea of guilty. At sentencing for

the 2005 conviction, both sentences were suspended on the condition that Threat

participate in Oklahoma’s Drug Court Treatment Program. In December 2006,

however, the state filed an application to revoke the suspension of Threat’s

sentences. A revocation hearing was held on February 21, 2007. Upon the

district court’s conclusion that he had violated the terms of the Drug Court

Treatment Program, he was sentenced to fifteen years’ imprisonment for his 2005

conviction, to run concurrently with the remaining term of his 2002 sentence.

Threat did not appeal the revocation to the Oklahoma Court of Criminal Appeals

(“OCCA”).

      On March 8, 2007, Threat filed a pro se motion in state district court to

withdraw his 2002 and 2005 guilty pleas. At a March 28 hearing, represented by

new counsel, Threat testified that he did not understand the consequences of the

pleas at the time he entered them, and was under the influence of blood pressure

medication that made him dizzy and drowsy at the time of the 2005 plea. The

district court denied Threat’s motion, and again, he did not appeal to the OCCA.

      Threat then filed an application for post-conviction relief in the state

district court. He raised three grounds for relief: (1) the state’s application for

                                         -2-
revocation of his suspended sentences violated his due process rights because it

failed to give adequate notice of the grounds for revocation, (2) the prosecutor

violated his rights by failing to give notice of the same, and (3) he received

ineffective assistance of counsel at the revocation proceedings. The court denied

his application on procedural grounds, concluding that he had waived these

arguments by failing to raise them on direct appeal. Threat appealed to the

OCCA, raising the same grounds and adding a fourth: that the cumulative effect

of the alleged errors violated his right to due process. The OCCA affirmed based

on Threat’s failure to pursue a direct appeal, adding that Threat did not allege that

this failure occurred through no fault of his own.

      On February 14, 2008, Threat filed a 28 U.S.C. § 2254 petition for writ of

habeas corpus in United States District Court for the Western District of

Oklahoma. In his petition, Threat raised the same four claims asserted in his

appeal to the OCCA and additionally claimed that counsel at his plea withdrawal

hearing was ineffective for failing to consult him regarding an appeal of the

court’s denial of his motion to withdraw. After the state filed a response brief

arguing that his claims were procedurally barred because they were not asserted

on direct appeal, Threat filed a reply in which he argued for the first time that a

transcript of the “March 28, 2007 revocation proceeding” 2 would vindicate his

      2
       Because Threat’s revocation hearing actually occurred on February 21,
2007, whereas his plea withdrawal hearing took place on March 28, it is not clear
                                                                   (continued...)

                                         -3-
claim that he was not afforded the right to appeal, thereby excusing him from the

operation of the procedural bar.

      Because the OCCA’s denial was premised upon an independent and

adequate state ground, the district court adopted the magistrate’s recommendation

and denied Threat’s petition as procedurally barred on all grounds other than

ineffective assistance of counsel. On the ineffective assistance of counsel claim,

the magistrate determined that neither counsel at Threat’s February 21, 2007,

revocation hearing, nor counsel at his March 28, 2007, plea withdrawal hearing,

was ineffective. The district court also noted that, to the extent Threat’s reply

raised a new claim arising from the lack of a transcript of his revocation hearing,

the claim was waived because he had not included it in his habeas petition or

attempted to amend the petition to do so.

                                           II

      Threat now seeks a COA from this court. Liberally construing his petition,

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we discern two issues. First, he

argues that Oklahoma’s procedural bar for issues not raised on direct appeal

should not be applied to him because he was not on notice of his right to appeal. 3

      2
       (...continued)
to which hearing he is referring. The record includes a transcript of the March 28
hearing, but not the February 21 hearing. At any rate, given our disposition of
this appeal, it is irrelevant which transcript Threat intended to seek.
      3
          Threat does not appeal the district court’s determination regarding his
                                                                        (continued...)

                                          -4-
Second, he argues that the state prevented him from showing lack of notice

because it failed to supply him with transcripts of his state court proceedings.

      When a district court dismisses a state prisoner’s § 2254 habeas petition on

procedural grounds without reaching the merits of the prisoner’s constitutional

claims, this court will grant a COA only if two conditions are met. First, the

petitioner must show that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Second, the petitioner must demonstrate

that reasonable jurists would find it debatable whether the district court was

correct in its procedural ruling. Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.; accord Laurson v.

Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). In such circumstances, no appeal is

warranted. Slack, 529 U.S. at 484.

      Threat cannot show that the district court’s procedural ruling was incorrect.

See id. at 485 (habeas courts are “allow[ed] and encourage[d] . . . to first resolve

procedural issues”). Oklahoma’s rule barring post-conviction relief for claims

that could have been raised on direct appeal constitutes an independent and

      3
        (...continued)
direct ineffective assistance of counsel claims, but he does argue that ineffective
assistance was a cause of his failure to appeal.

                                          -5-
adequate state ground barring habeas review. McCracken v. Gibson, 268 F.3d

970, 976 (10th Cir. 2001). Federal courts should invoke the bar “unless the

petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

justice.” Id. (quotation omitted). Threat asserts that neither counsel nor the court

placed him on notice of his right to appeal during or after his plea withdrawal

hearing, and argues that this failure constitutes cause for his default. We

disagree.

      While “it is generally true that a criminal defendant has no right to notice

of his right to appeal a guilty plea,” Hardiman v. Reynolds, 971 F.2d 500, 506

(10th Cir. 1992), in some circumstances counsel may have a duty to inform the

defendant of that right. 4 “A habeas petitioner may establish cause for his

procedural default by showing that he received ineffective assistance of counsel

in violation of the Sixth Amendment.” Banks v. Reynolds, 54 F.3d 1508, 1514

(10th Cir. 1995). Counsel may be ineffective for failing to consult a client about

an appeal only “when there is reason to think either (1) that a rational defendant

would want to appeal (for example, because there are nonfrivolous grounds for

appeal), or (2) that this particular defendant reasonably demonstrated to counsel

that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480


      4
        We note that both Threat and the state district judge signed a “summary of
facts” at his revocation hearing, and this summary included a section entitled
“Notice of Right to Appeal” that carefully explained the procedure for appealing
to the OCCA.

                                         -6-
(2000). For the reasons given by the district court below, Threat cannot show

either a nonfrivolous ground for appeal or that he reasonably demonstrated an

interest in appealing. Accordingly, he has not shown cause for his failure to

directly appeal his conviction.

      In light of this conclusion, Threat’s claim that he has a right to transcripts

of his state court proceedings also cannot support relief. Because we have

concluded that the state procedural bar applies even if Threat is correct that

neither counsel nor the court spoke to him about an appeal, any evidence

supporting this claim in the transcripts would not entitle him to relief. Thus,

reasonable jurists would agree that Oklahoma’s procedural bar against claims not

raised on direct appeal was correctly invoked by the district court as an

independent and adequate state ground to sustain Threat’s conviction.

                                         III

      For the reasons set forth above, Threat’s request for a COA is DENIED

and this appeal is DISMISSED.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                         -7-
