                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 20, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 DAVID GORDON SMITH,

          Petitioner-Appellant,

 v.
                                                          No. 09-5147
                                             (D.C. No. 4:06-CV-00468-TCK-FHM)
 MIKE ADDISON, Warden
                                                          (N.D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      David Gordon Smith, an Oklahoma state prisoner, applies for a certificate

of appealability (COA) to challenge the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. Because the district court correctly

concluded it was barred from reviewing Mr. Smith’s habeas petition, we deny his

application for a COA and dismiss his appeal.

                                     *   *    *




      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In September 1978, Mr. Smith and Jackie Ray Young robbed a tag agency

in Catoosa, Oklahoma. When the police arrived on the scene, a gun fight ensued

between the two robbers and Catoosa Police Chief J.B. Hamby. At some point

during the shooting, Chief Hamby was fatally wounded and Mr. Young committed

suicide. Mr. Smith was hit by one of Chief Hamby’s shots, but he was able to

flee the scene alive. A few hours later, police arrested Mr. Smith at a Tulsa

hospital where he was receiving treatment for his wound.

      The state charged Mr. Smith under the felony-murder doctrine for his role

in Chief Hamby’s death. In defense, Mr. Smith argued that he participated in the

robbery under duress, claiming that Mr. Young had put a gun to his head and

forced him to assist in the crime. The jury rejected this defense and convicted

Mr. Smith of first degree felony murder. Mr. Smith was then sentenced to life in

prison, in accord with the jury’s recommendation. Mr. Smith appealed to the

Oklahoma Court of Criminal Appeals (OCCA), and the OCCA affirmed his

conviction and sentence.

      Mr. Smith escaped from prison in 1985 and wasn’t recaptured until 1993.

Upon his return to prison, Mr. Smith filed a state Open Records Act request to

obtain all the records possessed by prosecutors prior to his conviction. The

information he received from this request, Mr. Smith claims, demonstrates that

the “prosecutors withheld material exculpatory evidence,” Pet. Br. at 3, and

thereby violated his Fourteenth Amendment due process rights under Brady v.

                                        -2-
Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment.”).

      In 1997, Mr. Smith presented his Brady claim in an application for post-

conviction relief in state court. The state district court in Rogers County,

Oklahoma denied his application, and Mr. Smith appealed to the OCCA. The

OCCA applied the state law doctrine of laches and held that Mr. Smith had

“forfeited consideration of his application for post-conviction relief through his

own inaction” over the years since his conviction. R. Vol. III at 406.

      Mr. Smith then filed his current federal habeas petition pursuant to 28

U.S.C. § 2254. The district court denied his petition, holding that it was barred

from considering Mr. Smith’s habeas claim because the OCCA denied the claim

on independent and adequate state law grounds. See D. Ct. Order at 6-7. Mr.

Smith now seeks to appeal the district court’s denial of his § 2254 petition.

                                      *   *     *

      Because he is in custody pursuant to the judgment of a state court, Mr.

Smith must obtain a COA before pursuing his appeal. 28 U.S.C. 2253(c)(1)(A).

We may issue a COA only if the applicant makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here, the

district court has dismissed the petition on procedural grounds, “without reaching

the prisoner’s underlying constitutional claim,” a COA will not issue unless

                                          -3-
“jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because

jurists of reason could not debate the district court’s ruling in this case, we deny

Mr. Smith’s request for a COA and dismiss his appeal.

      Under long-settled doctrine, “[a] federal habeas court will not review a

claim rejected by a state court if the decision of the state court rests on a state law

ground that is independent of the federal question and adequate to support the

judgment.” Beard v. Kindler, 130 S. Ct. 612, 614 (2009) (internal quotation

marks omitted). “The rule applies with equal force whether the state-law ground

is substantive or procedural.” Lee v. Kemna, 534 U.S. 362, 375 (2002). A state

law ground “is ‘independent’ if it relies on state law, rather than federal law,” and

“is ‘adequate’ if it is firmly established and regularly followed,” such that it does

not raise any federal due process questions associated with erratically enforced

laws. Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). 1

      1
         Before Congress amended 28 U.S.C. § 2254, through the Antiterrorism
and Effective Death Penalty Act (AEDPA), the Supreme Court explained and
defended this doctrine as “grounded in concerns of comity and federalism.”
Coleman v. Thompson, 501 U.S. 722, 730 (1991). Some commentators have
argued that the doctrine is now also a jurisdictional one grounded in the text of
AEDPA. After all, they emphasize, § 2254 allows federal courts to “entertain an
application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States,” 28 U.S.C.
§ 2254(a) (emphasis added), and directs that a writ “shall not be granted with
respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim resulted in a decision that was contrary to, or
                                                                        (continued...)

                                          -4-
      In this case, the district court correctly held that it was barred from

reviewing Mr. Smith’s habeas petition because the OCCA resolved his claim on

an independent and adequate state law ground. The OCCA’s decision was

independent because it was based on the state law doctrine of laches, not on any

federal law. And the doctrine of laches is adequate because it is both firmly

established and regularly followed by the OCCA. Thomas v. State, 903 P.2d 328,

332 (Okla. Crim. App. 1995) (“[T]he doctrine of laches has been and continues to

be applicable, in appropriate cases, to collateral attacks upon convictions . . .

where petitioner has forfeited that right through his own inaction.”).

      Under this court’s precedents, Mr. Smith could overcome the adequate and

independent state law bar to review only by demonstrating “cause and prejudice

or a fundamental miscarriage of justice.” Smith, 550 F.3d at 1274. 2 This

exception to the independent and adequate state ground doctrine, we are told,

“shows due regard for States’ finality and comity interests while ensuring that,”

as a matter of federal law, “fundamental fairness remains the central concern of

      1
       (...continued)
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1)
(emphasis added). “If a state court decision is based on an ‘adequate’ and
‘independent’ state ground,” these commentators argue, “there is no federal
question to review.” 2 Hertz & Liebman, Federal Habeas Corpus Practice and
Procedure § 26.1 at 1257. Resolution of this question, however, is not material to
our decision in this case.
      2
        Though this exception was crafted before AEDPA, federal courts have
continued to apply it after AEDPA’s passage. See, e.g., Smith, 550 F.3d at 1274.

                                         -5-
the writ of habeas corpus.” Dretke v. Haley, 541 U.S. 386, 393 (2004) (internal

quotation marks omitted). For a petitioner to show cause, however, he must

demonstrate that “some objective factor external to the defense impeded [his]

efforts to comply” with the state law. Murray v. Carrier, 477 U.S. 478, 488

(1986). And for a petitioner to show prejudice, he must show that he suffered

“actual prejudice as a result of the alleged violation of federal law.” Coleman,

501 U.S. at 750. The fundamental miscarriage of justice exception, meanwhile, is

“a narrow exception to the cause requirement where a constitutional violation has

probably resulted in the conviction of one who is ‘actually innocent’ of the

substantive offense.” Dretke, 541 U.S. at 393 (internal quotation marks omitted).

      Mr. Smith has not shown sufficient cause to excuse the independent and

adequate state grounds bar here. As the district court noted, Mr. Smith’s delay in

pursuing his Brady claim is directly attributable to his escape from prison. Had

he not escaped, Mr. Smith could’ve developed his claim in 1985, when Oklahoma

passed its Open Records Act. Okla. Stat. tit. 51, § 24A.1 (effective Nov. 1,

1985). As it happened, though, Mr. Smith didn’t seek the relevant records until

1994, once he had been returned to prison. And even then, Mr. Smith waited

another three years after discovering the alleged Brady violation before filing his

state petition for post-conviction relief. Because Mr. Smith cannot show cause,

we need not address whether he has shown prejudice.




                                        -6-
      Neither has Mr. Smith demonstrated that failure to review his claim would

result in a fundamental miscarriage of justice. Mr. Smith argues that the withheld

evidence would have supported his duress defense. But that defense presents a

legal justification for his conduct, not a claim of factual innocence. As we have

previously explained, arguments premised on legal innocence alone do not satisfy

the fundamental miscarriage of justice exception. See Ellis v. Hargett, 302 F.3d

1182, 1186 n.1 (10th Cir. 2002) (rejecting miscarriage of justice argument

because it merely “assert[s] that [petitioner] is legally innocent because his

conduct is justified or mitigated by the doctrines of self-defense or heat of

passion”); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (“Mr. Beavers

does not claim that he is innocent of killing Raymond Matthews. Rather, he

claims that he is not guilty of first degree murder because he was intoxicated and

acted in self defense. However, these arguments go to legal innocence, as

opposed to factual innocence.”); see also id. (“The exception is intended for those

rare situations ‘where the State has convicted the wrong person of the crime.’”

(quoting Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (quoting Sawyer v.

Whitley, 505 U.S. 333, 340 (1992))).

                                        ***

      For the foregoing reasons, the district court was indisputably correct in

concluding it was barred from reviewing Mr. Smith’s habeas petition.




                                         -7-
Accordingly, we must deny Mr. Smith’s application for a COA and dismiss his

appeal.



                                    ENTERED FOR THE COURT



                                    Neil M. Gorsuch
                                    Circuit Judge




                                      -8-
