                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 18 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    CAROL ANN BAILEY,

                Petitioner-Appellant,

    v.                                                    No. 99-6418
                                                    (D.C. No. 98-CV-732-C)
    DEBBIE MAHAFFEY; THE                                  (W.D. Okla.)
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and MURPHY , 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)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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.
      Following a jury trial in Oklahoma state court, petitioner Carol Ann Bailey

was found guilty of two counts of possession of a controlled substance after two

or more former felony convictions, and one count of possession of drug

paraphernalia. She was sentenced to thirty years in prison. Bailey was tried

conjointly with a co-defendant, Ronnie LeRoy Vails. Both defendants were

represented by the same counsel.

      Bailey’s conviction was affirmed on direct appeal and her subsequent

application for post-conviction relief was denied. The Oklahoma Court of

Criminal Appeals affirmed. She then filed a federal habeas corpus petition

pursuant to 28 U.S.C. § 2254, alleging that (1) she was denied effective assistance

of appellate counsel due to counsel’s failure to raise on direct appeal the issue of

a conflict of interest in the joint representation; (2) she was denied effective

assistance of appellate counsel due to counsel’s failure to raise a right of

confrontation issue on direct appeal; and (3) she was denied due process of law

when the trial court denied her motion to suppress.

      The district court adopted the findings and recommendation of the

magistrate judge and denied Bailey’s habeas petition. On appeal Bailey reurges

the same claims she asserted in her habeas petition. Her application for

a certificate of appealability was previously granted by this court on all issues.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


                                          -2-
       As a threshold matter, we address the state’s argument, in its answer brief,

that the district court erred in not granting its motion to dismiss Bailey’s petition

as outside the one-year statute of limitations set forth in the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). The state

asserts that the district court erred in finding that Bailey’s judgment was not final

for purposes of determining the date from which the one-year limitation period

began to run until the ninety days in which Bailey could have filed a petition for

certiorari with the Supreme Court had expired. A party may not attack the district

court’s decision with a view toward enlarging its own rights or lessening the

rights of its adversary absent a cross appeal.     See Hansen v. Director, OWCP , 984

F.2d 364, 367 (10th Cir. 1993). A jurisdictional issue, however, may be

considered without a cross appeal.      See Roe v. Cheyenne Mountain Conference

Resort, Inc. , 124 F.3d 1221, 1227-28 (10th Cir. 1997). “[Section] 2244(d) is not

jurisdictional and as a limitation may be subject to equitable tolling.”   Miller v.

Marr , 141 F.3d 976, 978 (10th Cir. 1998). Therefore, the state cannot challenge

the district court’s decision on the timeliness of Bailey’s petition absent a cross

appeal. 1


1
       We do note, however, that if considered, the state’s arguments regarding
the timeliness of Bailey’s petition would be found without merit.        See Rhine
v. Boone , 182 F.3d 1153, 1155-56 (10th Cir. 1999),      cert. denied , 120 S. Ct. 808
(2000) (listing cases holding that for purposes of § 2244(d)(1), the one-year
                                                                           (continued...)

                                             -3-
       “When reviewing the denial of a habeas corpus petition, we are generally

subject to two different frameworks of review, depending upon whether the state

courts addressed the merits of the claim for relief.”    Smallwood v. Gibson ,

191 F.3d 1257, 1264 (10th Cir. 1999). If the state court did not adjudicate the

issue on the merits, the district court’s legal conclusions are reviewed de novo

and its factual findings are reviewed for clear error.   See id. Where, as here, the

state court addressed the claims on their merits, this court conducts its review

pursuant to 28 U.S.C. § 2254.      See id.

       Because Bailey filed her § 2254 petition in May 1998, the provisions of

AEDPA apply. See Lindh v. Murphy , 521 U.S. 320, 336 (1997). We have held

that

       when reviewing the merits of a claim already decided by the state
       courts, we are bound to deny relief unless the state court’s decision
       “was contrary to, or involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme Court” or
       “resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.”

LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d)(1), (2)). Moreover, we presume the factual findings of the state court

are correct unless Bailey can rebut this presumption by clear and convincing


1
 (...continued)
limitations period does not begin to run until the Supreme Court has denied
review or the time for seeking Supreme Court review has expired).

                                             -4-
evidence. See id . § 2254(e)(1). Applying these standards, we have carefully

reviewed the parties’ briefs, the magistrate judge’s report and recommendation,

the district court’s order, and the record on appeal. We find no error.

       The district court agreed with the state court’s findings that Bailey failed to

show that her attorney’s representation fell below an objective standard of

reasonableness and there was a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.

See Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984). Bailey has not

adequately challenged these findings, and we therefore agree with the district

court’s conclusion that Bailey’s ineffective assistance of appellate counsel claims

are without merit.

       The state court found Bailey’s claim of error in the trial court’s denial of

her suppression motion to be waived for failure to raise the issue on direct appeal.

Oklahoma law denying post-conviction relief on defaulted claims that could have

been raised on direct appeal provides an independent and adequate state ground

permitting this court to refuse to review such claims.   See Odum v. Boone ,

62 F.3d 327, 331 (10th Cir. 1995). We will not conduct a habeas review on issues

defaulted in state court on independent and adequate state procedural grounds,

unless Bailey can demonstrate cause and prejudice or a fundamental miscarriage

of justice. See Coleman v. Thompson , 501 U.S. 722, 749-50 (1991). The district


                                            -5-
court found that Bailey failed to show cause as there was no external reason for

her failure to raise the issue on direct appeal. We agree with the magistrate

judge’s reasoning and its conclusion that Bailey procedurally defaulted this claim.

      The magistrate judge issued a thorough analysis as to why Bailey’s petition

should be denied. We decline to duplicate that analysis here. Accordingly, we

AFFIRM the denial of habeas corpus relief for substantially the same reasons as

those set forth in the magistrate judge’s October 30, 1998 supplemental findings

and recommendation as affirmed by the district court in its May 13, 1998 order.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




                                         -6-
