                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JUN 4 2001
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 MARK R. MCGUIRE,

           Petitioner - Appellant,
 vs.                                                     No. 00-6229
                                                   (D.C. No. CIV-95-59-R)
 JACK COWLEY; ATTORNEY                                  (W.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA; STATE OF
 OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. McGuire, an inmate represented by retained counsel, seeks to appeal

from the district court’s denial of his petition for habeas corpus relief under 28

U.S.C. § 2254. For substantially the reasons stated in the magistrate judge’s




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Report and Recommendation (“R&R”), we deny the application for a COA 1 and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 482 (2000).

      The district court conditionally granted Mr. McGuire’s original habeas

petition in 1997, directing that a writ of habeas corpus issue unless “the State of

Oklahoma provides the Petitioner with an opportunity to file a motion to

withdraw his guilty pleas . . . out of time.” Aplt. App. at 36 (quoting Order of

Jan. 2, 1997). Mr. McGuire’s out-of-time motion was denied on the merits, and

the Oklahoma Court of Criminal Appeals (“OCCA”) denied certiorari on August

11, 1998. Id. at 36-37, 41; see also id. at 66 (quoting portion of OCCA’s Order).

During the state proceedings, the federal district court directed that Mr.

McGuire’s habeas action be administratively closed until February 1999. Id. at 79

(nos. 38, 41, 43). In November 1998, Mr. McGuire moved to reopen his case and

amend the petition. The district court granted the motion without imposing any

restrictions on the amended claims. Id. at 37, 39-40; cf. Calderon v. Kan. Dep’t

of Social & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir. 1999) (concluding

that court need not treat request to amend as formal motion to amend under Fed.

R. Civ. P. 15(a) unless party specifies basis for proposed amendment). When Mr.


      1
        Although the district court did not act on the issue of a certificate of
appealability (“COA”), a COA is nonetheless deemed to have been denied. See
10th Cir. Emergency Gen. Order at 2 (Oct. 1, 1996). We construe Mr. McGuire’s
Notice of Appeal as an application for a COA from this court. See Fed. R. App.
P. 22(b)(2); see also Aplt. App. at 72.

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McGuire filed his amended petition, including claims that arose from the original

plea proceedings, the State moved to dismiss the amended petition as a successive

petition. Aplt. App. at 37; see also 28 U.S.C. § 2244(b). Upon the magistrate

judge’s recommendation, Aplt. App. at 32, the district court denied the amended

petition on the merits. Id. at 69-71.

      Because Mr. McGuire’s amended petition was filed after April 24, 1996, it

is subject to the Antiterrorism and Effective Death Penalty Act, including the

requirement that a petitioner obtain permission from the Court of Appeals in order

to file a successive petition. Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.

1998); see also 28 U.S.C. § 2244(b)(3). In this case, the district court never

entered a final judgment on Mr. McGuire’s original petition, and the amended

petition was filed with the court’s unconditional permission. Aplt. App. at 40.

Given the procedural posture of this case, the amended petition cannot be deemed

successive, regardless of the substance of the claims asserted therein. Thus, we

agree that § 2244(b) did not bar the district court’s consideration of the merits of

Mr. McGuire’s amended petition. Id.

       The claims in the amended petition fall into three categories: (1)

ineffective assistance of counsel in connection with the original plea proceedings;

(2) due process and equal protection violations, as well as other “wrong and

unfair” acts, by the Oklahoma courts; and (3) ineffective assistance of counsel in


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connection with the most recent state post-conviction proceedings. We agree with

the disposition of those claims below. Id. at 40-67, 70-71. Mr. McGuire has not

shown that his original defense attorney provided constitutionally defective

assistance in connection with the 1989 plea proceedings. See Strickland v.

Washington, 466 U.S. 668 (1984); see also Aplt. App. at 41-63. As to the

Oklahoma proceedings, Mr. McGuire’s constitutional claims are incorporated in

his ineffective assistance claims, which we have already rejected as meritless.

Aplt. App. at 65. To the extent his claims concern matters of state law and state

procedure, they are not cognizable on federal habeas review. Estelle v. McGuire,

502 U.S. 62, 67 (1991) (citation omitted); see also 28 U.S.C. § 2254(a). Finally,

because “[t]here is no constitutional right to an attorney in state post-conviction

proceedings,” Coleman v. Thompson, 501 U.S. 722, 752 (1991), we also reject the

ineffective assistance claims that relate to Mr. McGuire’s motion to withdraw his

pleas and his certiorari petition to the OCCA.

      In sum, we hold that Mr. McGuire has failed to make the requisite

substantial showing of the denial of a constitutional right, Slack, 529 U.S. at 482,

and we therefore deny his application for a COA and dismiss the appeal.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge



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