                                                                           FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  December 13, 2007
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 GERALD LAMAR FRYAR,

              Petitioner - Appellant,                   No. 07-6175
       v.                                            (W. D. Oklahoma)
 THOMAS C. PETERSON, Warden,                      (D.C. No. 07-CV-140-F)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Gerald L. Fryar is an inmate in the custody of the Oklahoma Department of

Corrections, where he is serving a ten-year sentence for escape. He requests a

certificate of appealability (COA) to challenge the denial by the United States

District Court for the Western District of Oklahoma of his application for relief

under 28 U.S.C. § 2254. Because Mr. Fryar has failed to make a substantial

showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2), we decline to issue a COA.

      Mr. Fryar argued in district court that enhancing his sentence under

Oklahoma’s habitual-offender statute was improper for crimes of escape. The

government responded that Mr. Fryar had failed to exhaust his state-court

remedies on this issue, as he had not raised it before the Oklahoma Court of
Criminal Appeals. Mr. Fryar countered that ineffective assistance of counsel

prevented him from raising the issue. The court declined to dispose of the matter

on exhaustion grounds and concluded that the enhancement to Mr. Fryar’s

sentence was permissible under Oklahoma law. The court construed Mr. Fryar’s

application as also challenging his sentence as cruel and unusual but found the

sentence to be authorized by Oklahoma law and not so grossly disproportionate to

the crime as to violate the Eighth Amendment.

      In his application for a COA, Mr. Fryar again challenges the habitual-

offender enhancement of his sentence. He also claims that his counsel was

ineffective for failing to object to the use of the habitual-offender enhancement,

and he raises a new claim of ineffective assistance of counsel, based on his

attorney’s alleged failure to object to the introduction of his criminal history at

trial. He does not make any Eighth Amendment argument.

      We lack jurisdiction under § 2254 to consider Mr. Fryar’s claim that the

habitual-offender enhancement was improper. Our review is limited to

“violation[s] of the Constitution or laws or treaties of the United States,”

28 U.S.C. § 2254(a), and this claim is rooted in Oklahoma state law.

      We may, however, consider a claim that counsel was ineffective under the

federal constitution for failing to raise a state-law issue. Mr. Fryar claims that his

counsel was ineffective for failing to object to the habitual-offender enhancement.

In district court he did not raise this alleged ineffectiveness as an independent

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claim, but only to overcome the apparent procedural bar preventing consideration

of his sentencing claim. Nonetheless, even if Mr. Fryar had raised the

ineffective-assistance claim independently, doing so would have been futile

because he cannot show either deficient representation or prejudice, both of which

are required by Strickland v. Washington, 466 U.S. 668 (1984). Mr. Fryar cannot

make these showings because it is clear that the enhancement to his sentence was

proper under Oklahoma law. The Oklahoma statute addressing penalties for

escape from the custody of the Department of Corrections, Okla. Stat. Ann.

tit. 21, § 443(D), provides that “if the individual who escapes has felony

convictions for offenses other than the offense for which the person was serving

imprisonment at the time of the escape, those previous felony convictions may be

used for enhancement of punishment.” At trial Mr. Fryar admitted three prior

felony convictions distinct from the one for which he was in custody at the time

of his escape. He was therefore eligible for a habitual-offender sentence

enhancement.

      Two cases that Mr. Fryar cites to the contrary—Chester v. State, 485 P.2d

1065 (Okla. Crim. App. 1971), and Delfrate v. State, 732 P.2d 900 (Okla. Crim.

App. 1987)—are not instructive on this point because they have been superseded

by the 1988 statutory amendment adding subsection D to Section 443. See 1988

Okla. Sess. Law Serv. 109, § 23. The Oklahoma Court of Criminal Appeals

recognized the effect of this amendment in Snyder v. State, 806 P.2d 652, 654

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(Okla. Crim. App. 1989). The third case that Mr. Fryar cites, McBrain v. State,

764 P.2d 905 (Okla. Crim. App. 1988), is irrelevant. Although the court in

McBrain did state that the maximum sentence for escape was seven years, id. at

909, it did not consider habitual-offender enhancements.

      Mr. Fryar’s second claim of ineffective assistance of counsel, his attorney’s

alleged failure to object to the introduction of his criminal history at trial, was not

presented to the district court. As a general rule, this court will not consider an

issue not raised below. See Walker v. Mather (In re Walker), 959 F.2d 894, 896

(10th Cir. 1992).

      Mr. Fryar has not made a substantial showing of the denial of a

constitutional right, because “reasonable jurists” could not “find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). We therefore DENY his application for a

COA. His request to proceed in forma pauperis is GRANTED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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