                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                  TENTH CIRCUIT                             September 12, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
SCOTT ALLEN BLACK,

             Petitioner – Appellant,

v.                                                          No. 12-6081
                                                    (D.C. No. 5:11-CV-01130-M)
JAMES EZELL, Warden                                       (D. W.D. Okla.)

             Respondent - Appellee.




                                  ORDER
                   DENYING CERTIFICATE OF APPEALABILITY
                          AND DISMISSING APPEAL


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


      Scott Allen Black seeks to appeal from the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. The issues he wants us to review have been

waived. We deny his application for a Certificate of Appealability (COA) and dismiss.

              I.    BACKGROUND AND PROCEDURAL HISTORY

      An Oklahoma state court jury convicted Black of first-degree arson. He was later

sentenced to 20 years imprisonment and fined $25,000. In a counseled appeal to the

Oklahoma Court of Criminal Appeals (OCCA), he argued the evidence was insufficient

to sustain his conviction; nothing more. The OCCA rejected the argument and affirmed.

      Proceeding pro se, he then sought state post-conviction relief. He argued:
       (1) his statements to law enforcement officials were improperly admitted,
       (2) evidence admitted at his trial was the fruit of an impermissible search
       and seizure and should not have been admitted, (3) a juror was not qualified
       to serve on the jury, thereby denying Petitioner a fair trial, (4) [he] was
       denied his Sixth Amendment right to effective assistance of trial counsel,
       and (5) [he] was denied his Sixth Amendment right to effective assistance
       of appellate counsel.

(R. at 405.) The state court concluded he had procedurally defaulted the first four claims

and rejected the fifth on the merits.1 The OCCA affirmed.

       Black then brought this 28 U.S.C. § 2254 habeas petition, making two claims: (1)

the evidence was insufficient to sustain the conviction, and (2) his trial and appellate

counsel were ineffective. The district judge referred the case to a magistrate judge.2

After the state responded to the petition, the magistrate carefully reviewed the evidence

supporting Black’s conviction and concluded “[t]here was more than sufficient

evidence . . . . to support the arson conviction.” (R. 410.) The magistrate also

painstakingly reviewed the performance of trial counsel and appellate counsel and

concluded their representation was not ineffective.3



       1
         “Oklahoma’s procedural bar rules indicate ineffective assistance of counsel
claims must normally be brought on direct appeal.” Snow v. Sirmons, 474 F.3d 693, 726
n.35 (10th Cir. 2007). Hence, his fourth claim, ineffective assistance of trial counsel was
procedurally defaulted along with the first three claims which also were procedurally
defaulted because they could have been directly appealed but were not. See Fowler v.
State, 896 P.2d 566, 568-69 (Okl. Cr. 1995).
        His fifth claim, ineffective assistance of appellate counsel, was properly raised for
the first time in his petition for post-conviction relief. See Harris v. State, 167 P.3d 438,
441 (Okla. Crim. App. 2007) (“A claim of ineffective assistance of appellate counsel may
be raised for the first time on post-conviction.”).
       2
           See 28 U.S.C. § 636(b)(1)(B).
       3
           The magistrate explained that Black may well have procedurally defaulted his

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       Black objected to the magistrate’s report and recommendation (R&R). Although

we have some difficulty understanding his objection, it appears to argue (1) the

magistrate incorrectly relied on inadmissible statements to conclude the evidence was

sufficient to sustain his conviction, and (2) there was a Brady violation entitling him to a

new trial. Without explicitly addressing Black’s objections, the district judge adopted the

magistrate’s R&R, denied Black’s petition, and denied his application for a certificate of

appealability (COA).

                                II.       DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. 28 U.S.C. § 2253(a), (c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336

(2003). We issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means the applicant must

present an issue, the proper resolution of which is debatable among reasonable jurists and

therefore “deserve[s] encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotation marks omitted). Normally we undertake a preliminary,




ineffective assistance of trial counsel claim, but chose to dispose it on the merits rather
than deal with the collateral issues involved in the procedural default. See Cannon v.
Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004) (“When questions of procedural bar are
problematic, however, and the substantive claim can be disposed of readily, a federal
court may exercise its discretion to bypass the procedural issues and reject a habeas claim
on the merits.”). The state court concluded Black was not denied the effective assistance
of appellate counsel, and the Oklahoma Court of Criminal Appeals affirmed. The
magistrate concluded the Oklahoma Court of Criminal Appeals’ decision was neither
contrary to established Supreme Court precedent nor an unreasonable application of it.
See 28 U.S.C. § 2254(d)(1).

                                                -3-
though not definitive, legal analysis of his claims, see Miller–El, 537 U.S. at 338, but

Black has not preserved his claims for our review.

       He raises three issues in his application for a COA. As we understand his

application, he contends the district court erred: (1) in failing to address the merits of the

constitutional issues the state courts treated as procedurally defaulted on review of his

state petition for post-conviction relief; (2) in failing to address the merits of the

ineffective assistance of trial counsel claim; and (3) in concluding, without an evidentiary

hearing, he had received effective assistance of appellate counsel. Black waived our

consideration of these issues because he raised none of them in his objection to the

magistrate’s R&R. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (adopting

a firm waiver rule); see, e.g., Hall v. Jordan, 143 F. App’x 74, 75–76 (10th Cir. 2005)

(noting firm waiver rule forecloses consideration of arguments not presented in the

objection to a magistrate’s report and recommendation).4

       Because we cannot look to the merits of any of his claims we DENY Black’s

application for a COA and dismiss this matter. We also DENY his motion to proceed

without prepayment of costs and fees. He is required to pay all filing and docketing fees




       4
         Neither of the exceptions to the firm waiver rule apply in this case because
Black was advised of the consequences of failing to object and presented other objections
to the magistrate. See Wirsching v. Colorado, 360 F.3d 1191, 1997 (10th Cir. 2004)
(noting we may excuse a failure to object when a pro se litigant is not advised of the
consequences of a failure to object or the interests of justice require).

                                                 -4-
to the Clerk of the District Court. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir.

2001).

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




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