                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 23 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    DAVID BRUCE HAWKINS,

                Petitioner-Appellant,

    v.                                                    No. 00-5246
                                                    (D.C. No. 97-CV-308-K)
    STEVE HARGETT,                                        (N.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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.
      David Hawkins, an Oklahoma state prisoner, seeks a certificate of

appealability to appeal the district court’s denial of his 28 U.S.C. § 2254 petition

for writ of habeas corpus. Because we conclude Hawkins has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253

(c)(2), we deny his request for a certificate of appealability and dismiss the

appeal.

      Hawkins was convicted by an Oklahoma state court jury of second degree

burglary, shooting with intent to kill, two counts of kidnapping, unauthorized use

of a motor vehicle, and four counts of first degree rape and was sentenced to life

imprisonment plus fifty-two years. His convictions were affirmed on direct

appeal, and his petition for state post-conviction relief was denied initially and on

appeal.

      Hawkins then brought this § 2254 petition in federal district court, asserting

fourteen claims for relief. The district court found the claims to have been either

procedurally defaulted or to have failed to meet the strict standard for relief under

§ 2254(d). We agree.

      The district court agreed with the recommendation of the magistrate judge

that seven of Hawkins’ claims and part of another were procedurally barred.

Hawkins does not contest that determination, but, instead, attempts to show either

“cause and prejudice” to excuse the default or, alternatively, that failure to


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consider his claims will result in a fundamental miscarriage of justice. Hawkins

has failed to make either showing.

       As cause for his procedural defaults, Hawkins states that he is pro se and

unlearned in the law. That status, however, is insufficient to establish cause for

procedural default.   Rodriguez v. Maynard , 948 F.2d 684, 688 (10th Cir. 1991).

In order to excuse a failure to raise defaulted claims, a habeas petitioner must

identify “some external impediment that prevents the petitioner or counsel from

constructing or raising the claim.”     Id. at 687 (quotation omitted). Hawkins has

identified no such external impediment.

       Nor has Hawkins demonstrated that a fundamental miscarriage of justice

will occur should the federal courts refuse to address his claims. A fundamental

miscarriage of justice occurs in only narrow cases and in extraordinary instances

where a constitutional violation probably caused the conviction of an innocent

person. Murray v. Carrier , 477 U.S. 478, 496 (1986). For that kind of claim to

be credible, Hawkins must support his allegations of innocence with “new reliable

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence – that was not presented at trial.”   Schlup

v. Delo , 513 U.S. 298, 324 (1995).

       Instead of making this showing, Hawkins simply reiterates the evidence

presented at trial and gives it his personal interpretation. He has presented no


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new evidence to support his interpretation and has thus failed to come within the

fundamental miscarriage exception.

       For the balance of the claims not procedurally defaulted, the district court

found that none of the state court judgments addressing the claims “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

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.” 28 U.S.C.

§ 2254(d)(1) and (2). For substantially the same reasons stated by the magistrate

judge and the district court, we agree with this conclusion. Hawkins has thus

failed to make the “substantial showing of the denial of a constitutional right”

necessary for a certificate of appealability to issue.   See 28 U.S.C. § 2253(c)(2).

       We therefore DENY the application for a certificate of appealability, and

DISMISS the appeal.



                                                         Entered for the Court



                                                         Bobby R. Baldock
                                                         Circuit Judge




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