                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 5 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MCKINLEY MAHAN,

                Petitioner-Appellant,

    v.                                                   No. 96-6269
                                                   (D.C. No. CIV-96-456-T)
    STEVE HARGETT; ATTORNEY                              (W.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                             ORDER AND JUDGMENT *



Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.



         After examining the briefs and 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Petitioner appeals the district court’s denial of his petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254, and applies to this court for a

certificate of appealability, as required by 28 U.S.C. § 2253(c)(1)(A) and (c)(2).

Petitioner was convicted in Oklahoma state court of second degree murder and

was sentenced to life imprisonment. His conviction was affirmed on direct

appeal. Petitioner then sought post-conviction relief in the Oklahoma courts.

Post-conviction relief was denied, and the denial was affirmed on appeal. His

state remedies exhausted, petitioner then filed a petition for writ of habeas corpus

in federal district court, which was denied. Petitioner now appeals the district

court’s denial of his petition.

      With regard to the denial of a habeas corpus petition, we review the district

court’s findings of fact for clear error, and its legal conclusions de novo. See

Brewer v. Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995). Applying these

standards, we must, for the reasons set forth below, affirm the judgment in part,

reverse in part, and remand the cause to the district court for further proceedings.

                                           I

      We begin by addressing the first issue raised by petitioner; whether the

district court was correct in applying the standard set forth in 28 U.S.C. § 2253,

as amended by the Antiterrorist and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 (1996), in denying petitioner’s application for a


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certificate of appealability. Petitioner argues that the district court should have

addressed his application for a certificate of probable cause pursuant to the

version of the statute in effect at the time he filed his petition before the district

court.

         We held in Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert.

denied, 117 S. Ct. 746 (1997), that the amendment to § 2253, which changed the

required showing from “a substantial showing of the denial of a federal right,” to

“a substantial showing of the denial of a constitutional right,” did not effectively

change the standard. Therefore, application of the amended statute does not have

a retroactive effect, and the district court was correct to apply the law in effect at

the time it rendered its decision. See id.

                                             II

         In its brief before the district court, the State argued that petitioner’s claims

were procedurally barred because the Oklahoma Court of Criminal Appeals

affirmed the denial of habeas relief based on the adequate and independent

ground that the issues had been waived because they had not been raised on direct

appeal. Apparently, the magistrate judge agreed with the State; he recommended

that the claims be denied as procedurally barred, with the exception of the claims

of ineffective assistance of appellate counsel. The district court summarily




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adopted the magistrate judge’s findings and recommendations. This was error on

two different levels.

      If a state prisoner fails to meet a state procedural requirement, and the last

state court to address the matter refuses to address the merits of the claims

because of the procedural default, the claims are procedurally barred in federal

habeas proceedings. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);

Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). “In these cases, the state

judgment rests on independent and adequate state procedural grounds.” Coleman,

501 U.S. at 730. “On habeas review, we do not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless cause and prejudice or a fundamental miscarriage of justice is shown.”

Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993). A procedural default only

bars review on federal habeas, however, when the last state court to render

judgment in the case clearly and expressly states that state procedural bar is the

basis of its judgment. See Harris v. Reed, 489 U.S. 255, 263 (1989).

      In this case, the state district court reached the merits of petitioner’s

application for post-conviction relief and dismissed the petition on the merits. On

appeal, the Oklahoma Court of Criminal Appeals enumerated the issues raised and

then set forth the district court’s findings and conclusions on the merits of each

claim. The appeals court then stated:


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             After a thorough consideration of the entire record before us,
      we find no disagreement with the Trial Court’s findings and
      conclusions. All issues previously ruled upon are res judicata. All
      issues not raised, which could have been raised, are waived. 22 O.S.
      1991, § 1086.

             As Petitioner has failed to show entitlement to relief in a post-
      conviction proceeding, the order of the District Court denying
      Petitioner’s application for post-conviction relief is AFFIRMED.

Order Affirming Denial of Post-Conviction Relief, R.I, doc.9, Ex. E at 3.

      This is just the sort of ambiguous reference to state law that is remedied by

application of the “plain statement” rule originated in Michigan v. Long, 463 U.S.

1032, 1041-42 (1983), and later applied to habeas proceedings in Harris. 489

U.S. at 261-63. There is no question that the state district court relied on federal

law in rejecting the petition on the merits, and the Oklahoma Court of Criminal

Appeals’ order fairly appears to rest on federal law; “‘the adequacy and

independence of any possible state law ground is not clear from the face of the

opinion.’” Coleman, 501 U.S. at 733 (quoting Long, 463 U.S. at 1040-41). In

such a case, “‘we will accept as the most reasonable explanation that the state

court decided the case the way it did because it believed that federal law required

it to do so.’” Id. In light of the appeals court’s reiteration of the district court’s

findings on the merits, the two sentences in the appeals court opinion stating

general principles of res judicata and waiver, without reference to particular

issues or findings, are simply not a clear and express statement here that the court


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affirmed the dismissal based on procedural default. Further, there is nothing in

the Oklahoma Court of Criminal Appeals’ order indicating that the reiteration of

the district court’s findings on the merits and the court’s affirmance thereof is an

alternative holding to dismissal based on procedural default. See Harris, 463 U.S.

at 264 n.10.

      Even if the Oklahoma Court of Criminal Appeals had affirmed the denial of

relief based on procedural default, the district court’s finding that waiver was an

adequate and independent state ground for procedural default of the ineffective

assistance of counsel claims was error. In Brecheen v. Reynolds, 41 F.3d 1343,

1363 (10th Cir. 1994), we recognized that “[t]he general rule is the failure to raise

a claim at trial or on direct appeal will preclude federal habeas corpus review of

the merits of the claim absent a showing of either cause and prejudice or a

fundamental miscarriage of justice.” We went on to hold that “[w]hen, however,

the underlying claim is ineffective assistance of counsel, then our cases indicate

the ‘general’ rule must give way because of countervailing concerns unique to

ineffective assistance claims.” Id. This is so because, although the state rule

regarding waiver of a claim not raised on direct appeal is an independent state law

basis, it is not an adequate basis. See id. at 1364. The choice between raising an

ineffective assistance claim on direct appeal, with new counsel but without the

benefit of additional fact-finding, or forfeiting the claim under state law,


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“deprives [a petitioner] of any meaningful review of his ineffective assistance

claim[s].” Id. For that reason, the ground is inadequate. Failure to raise an

ineffective assistance of counsel claim on direct review will not preclude federal

habeas review because of procedural bar. See id. at 1363-64; Brewer, 51 F.3d at

1522.

                                           III

        The district court addressed petitioner’s claims of ineffective assistance of

appellate counsel on the merits, and found them to be baseless. We agree. With

regard to these claims, our review is de novo. See Brewer, 51 F.3d at 1523. We

accept the district court’s findings of fact absent clear error. See id. Petitioner

must show both that counsel’s performance was deficient, and that the deficient

performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,

687 (1984). These same standards are applicable to claims of ineffective

assistance of appellate counsel. See United States v. Cook, 45 F.3d 388, 392

(10th Cir. 1995).

        The district court made detailed findings with regard to the following

ineffective assistance of appellate counsel claims: failure to raise on appeal

Detective McKenzie’s disqualification because of relation to individual that

petitioner claims actually committed the crime; failure to include witness

statements and police reports in appellate record; and failure to raise issue on


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appeal that former conviction should have been suppressed and not used for

sentence enhancement. 1 We affirm the district court’s determination that none of

these three claims has merit for substantially the same reasons set forth in the

magistrate judge’s findings and recommendations.

                                         IV

      With regard to all other issues, however, we must remand to the district

court. The district court’s interpretation of the Oklahoma Court of Criminal

Appeals’ order as applying procedural bar was error and, therefore, the district

court’s application of procedural bar on that basis was also error. Thus, we

remand for further consideration on all issues, except the ineffective assistance of

appellate counsel claims, which we affirm. The judgment of the district court is

AFFIRMED in part, REVERSED in part and REMANDED. The certificate of

appealability is GRANTED.


                                                     Entered for the Court


                                                     Mary Beck Briscoe
                                                     Circuit Judge


1
       We note that the district court referred to claims of ineffective assistance of
appellate counsel with regard to several other issues raised by petitioner. Our
reading of both the petition before that court and the petition filed on appeal
shows that petitioner raised ineffective assistance of appellate counsel claims only
in the three issues addressed above. None of petitioner’s other issues were
couched in terms of appellate counsel’s ineffectiveness.

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