                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             OCT 4 2004
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RONALD ARLEN LEE,

        Petitioner - Appellant,
                                                        No. 04-6130
 vs.                                             (D.C. No. 03-CV-1510-M)
                                                       (W.D. Okla.)
 REGINALD HINES, Warden,

        Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Ronald Arlen Lee, an inmate appearing pro se, seeks a

certificate of appealability (COA) allowing him to appeal the district court’s order

denying his habeas petition. Because we determine that Mr. Lee has not made a

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

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and

dismiss the appeal.

       Mr. Lee was found guilty of child abuse by a jury verdict and sentenced to

seven years imprisonment and a $2,500 fine. R. Doc. 9 (Orig. R. at 61, 72.). His

conviction was upheld on direct appeal by the Oklahoma Court of Criminal
Appeals (“OCCA”), and his requests for post-conviction relief were denied by the

state district court, and the OCCA.

      Mr. Lee filed this habeas petition on October 29, 2003. In his petition, Mr.

Lee asserts eight claims: (1) he was denied the right to present witnesses on his

behalf because the witnesses were unaware of when his trial would be given a

rotating trial docket; (2) he was denied access to court records and transcripts,

which would have helped him prove witness perjury during his trial; (3) standby

trial counsel provided ineffective assistance in presenting his defense; (4) the trial

court erred in failing to sua sponte give jury instructions related to self-defense

and the right to discipline a child; (5) he was denied compulsory process as the

trial court failed to address a witness’s non-compliance with a subpoena ordering

her to bring specified documents to trial; (6) the court clerk and trial counsel tried

to coerce him to plead guilty by charging him with incarceration costs; (7) the

Oklahoma Department of Human Resources failed to inform him of his rights

during its investigation; and (8) ineffective assistance of standby trial counsel.

      Mr. Lee’s habeas petition was referred to a magistrate judge for

recommendation. The magistrate judge recommended that the petition be denied.

R. Doc. 16. Mr. Lee filed a timely objection to the recommendation, and the

district court reviewed de novo. The district court subsequently adopted the

magistrate’s recommendation and denied Mr. Lee’s petition. R. Doc. 18.


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      For this court to grant a COA, Mr. Lee must make a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Where the district court denies a habeas

petition on the merits, a COA should issue when the petitioner “demonstrate[s]

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. Where the

district court denies a petition on procedural grounds, a COA should only issue

when the petitioner “shows, at least, 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 was correct in its

procedural ruling.” Id. (emphasis added). We do not think the district court’s

ruling is fairly debatable or wrong.

      Mr. Lee failed to raise all but his fourth claim on direct appeal.

Concerning his fourth claim, Mr. Lee would have to show that the OCCA’s

decision concerning the jury instructions was an unreasonable application of

Supreme Court precedent or was an unreasonable determination of the facts in

light of the evidence presented to the state court. See 28 U.S.C. § 2254(d);

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J.); Tennard v.

Dretke, __ U.S. __, 124 S.Ct. 2562, 2569 (2004). The OCCA determined on

direct appeal that the failure of the trial court to give instructions on self-defense


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or the right to use reasonable force to discipline a child did not amount to plain

error because the instructions were not supported by the evidence and were

inconsistent with Mr. Lee’s theory of defense. R. Doc. 9 (OCCA Summary Op. at

2). The OCCA’s conclusion that a self-defense instruction was not justified by

the evidence is supported by the record because nothing suggests that Mr. Lee

ever perceived an imminent danger of bodily harm from the victim.       Though the

jury was not instructed on a right to use reasonable force, the jury was instructed

on what constituted “unreasonable force,” specifically, “[m]ore than that

ordinarily used as a means of discipline.” R. Doc. 9 (Orig. R. at 53). Given the

state of the record, omission of further instructions on this topic did not deprive

Mr. Lee of fundamental fairness or violate due process. See Henderson v. Kibbe,

431 U.S. 145, 155 (1977).

      Mr. Lee’s remaining claims were denied on state post-conviction for failure

to have raised them on direct appeal. Under Oklahoma law, the defendant waives

all claims that could have been--but were not--raised on direct appeal. Okla. Stat.

Ann. tit. 22, § 1086. Though this court has often questioned whether Oklahoma’s

rule is an adequate and independent state law ground when it comes to the failure

to raise ineffective assistance of trial counsel claims on direct appeal, we need not

reach that issue because Mr. Lee represented himself at trial. Even though Mr.

Lee had the assistance of standby trial counsel, the magistrate judge’s conclusion


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that no claim for ineffective assistance lies in this case is not reasonably

debatable. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). A defendant

who chooses to represent himself and has the assistance of court appointed

standby counsel cannot succeed in establishing ineffective assistance against such

counsel when it is clear that the defendant maintained control of his defense. See

United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998); United States v.

Schmidt, 105 F.3d 82, 90 (2d Cir. 1997). The trial transcript demonstrates that

Mr. Lee controlled his defense. Further, Mr. Lee has failed to establish “specific

allegations . . . as to the inadequacy” of Oklahoma’s procedure. Hooks v. Ward,

184 F.3d 1206, 1217 (10th Cir. 1999). Thus, Mr. Lee’s third and eighth claims are

foreclosed.

      The remaining claims, one, two, six, and seven, are procedurally barred for

not having been raised on direct appeal, absent a showing of cause and prejudice

or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722,

749-50 (1991). Although ineffective assistance of counsel may provide cause, we

must defer to the OCCA’s conclusion that appellate counsel was not ineffective

for failing to raise these grounds unless such conclusion is unreasonable. 28

U.S.C. § 2254(d); R. Doc. 9 (OCCA Order Affirming Denial of Post Conviction

Relief at 3). Despite the OCCA’s summary disposition of this issue, it is not

unreasonable. Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). The


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magistrate judge’s conclusion that Mr. Lee has failed to show prejudice, that is,

that there is a reasonable probability that, but for appellate counsel’s errors, the

results of his direct appeal would have been different, is not debatable. See Neill

v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001) (“Strickland v. Washington

governs this ineffective-appellate-assistance inquiry” (citation omitted)). Nor has

Mr. Lee come forward with any evidence of actual innocence.

      Accordingly, we DENY a COA and DISMISS the appeal.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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