                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 27, 2008
                      UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court



 STANLEY MAURICE ROBINSON,

                 Petitioner - Appellant,
                                                        No. 08-5005
          v.                                             N.D. Okla.
 RON WARD, Director; OKLAHOMA               (D.C. No. 03-CV-00183-TCK-PCJ)
 DEPARTMENT OF CORRECTIONS;
 STATE OF OKLAHOMA,

                 Respondents - Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY
                         AND DISMISSING APPEAL


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



      Stanley Robinson, a state prisoner appearing pro se 1 and in forma pauperis,

seeks a Certificate of Appealability (COA) with respect to the dismissal of his

petition for habeas corpus. The district court denied a COA. We likewise deny a

COA and dismiss this nascent appeal.

      Robinson was tried, convicted and sentenced to forty years imprisonment

for unauthorized use of a motor vehicle after a former conviction of two or more

felonies. Following direct appeal of his conviction and denial of post-conviction

      1
       We liberally review pro se pleadings. See Beedle v. Wilson, 422 F.3d
1059, 1063 (10th Cir. 2005).
relief in state courts, Robinson filed a federal petition for writ of habeas corpus.

He claimed the Oklahoma Court of Criminal Appeals (OCCA) denied his right to

effective assistance of trial and appellate counsel. He maintains his counsel was

ineffective for failing to challenge the prosecutor’s misconduct and the jury’s

consideration of two improper sentences at the penalty phase.

      The district court concluded the OCCA’s rejection of Robinson’s

prosecutorial misconduct claim was not an unreasonable application of

constitutional law. First, as a matter of fact, the OCCA determined the trial court

redacted any information that would imply Robinson was on parole or probation

at the time he committed his current offense. Second, as a matter of law, the

OCCA determined the prosecutor’s improper comments were the target of defense

counsel’s objections and the trial court gave the jury specific instructions curing

any error. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (rebuttable

presumption that a jury will follow judge’s instruction to disregard evidence).

      The district court determined the OCCA used the wrong standard in

reviewing Robinson’s ineffective assistance of appellate counsel claim, so it

conducted a de novo review applying Strickland v. Washington, 466 U.S. 668

(1984). The district court concluded counsel was not ineffective by failing to

challenge Robinson’s previous convictions because the claim is without merit.

See Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998). The district court

concluded that even if one of Robinson’s previous convictions resulted in an

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invalid sentence, an invalid sentence did not invalidate the conviction itself. See

United States v. Jackson, 493 F.3d 1179, 1184 (10th Cir. 2007); Davis v. State,

845 P.2d 194, 197 (Okla. Crim. App. 1993) (illegal sentence does not affect the

validity of a judgment). In any event, it determined the convictions were

appropriately used for the sentence enhancement. Finally, to the extent Robinson

failed to raise the alleged trial errors on direct appeal, his claims were

procedurally barred. Robinson seeks a COA to appeal from the district court’s

determinations.

      A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA only if Clark makes a

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

§ 2253(c)(2). To make this showing, Robinson must establish that “reasonable

jurists could debate whether . . . the petition should have been resolved [by the

district court] in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quotations omitted). Where the district court dismissed his habeas petition on

procedural grounds, he must demonstrate both that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason 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

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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. We review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001).

      In his request for a COA, Robinson frames the issues as follows: (1)

whether the district court erred in concluding Robinson was afforded a full and

fair opportunity to litigate his Sixth Amendment claim; and (2) whether trial and

appellate counsel were ineffective. The district court carefully reviewed

Robinson’s Sixth Amendment claims and correctly determined his trial counsel

and his appellate counsel were not ineffective. His remaining claims are

procedurally barred. We DENY a COA and DISMISS his application.



                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




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