                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 26 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 GEORGE WILLIAM ISBILL,

          Petitioner - Appellant,
 v.
                                                       No. 02-6139
 RANDY WORKMAN, Warden; DICK                     (D.C. No. 00-CV-1950-F)
 CONNER CORRECTIONAL                                   (W.D. Okla.)
 CENTER,

          Respondents - Appellees.




                             ORDER AND JUDGMENT *


Before TACHA, SEYMOUR, and EBEL, Circuit Judges.


      Petitioner George William Isbill, Jr., seeks relief under 28 U.S.C. § 2254

from his state conviction for first degree murder. He contends that the Oklahoma

courts denied him his Sixth Amendment right to present a defense and his

Fourteenth Amendment right to due process when they refused to grant him a new

      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The 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.
trial. We granted Petitioner a Certificate of Appealability on this issue. (Order

1/16/03.) Because we find that Petitioner has failed to support his claim for

relief, we AFFIRM the district court’s denial of his habeas petition.

      In the District Court of Cleveland County, Petitioner was indicted for

acting conjointly with Tony Brantley in committing the murder of Richard

Steagall. (Aplt. Br. at 2-3.) Petitioner and Brantley were tried separately. (Id. at

2.) While Brantley was acquitted of the charges, Petitioner was convicted and

sentenced to life without parole. (Id.) Following Petitioner’s trial, Brantley

signed an affidavit averring that he alone murdered Steagall and that he had made

himself unavailable to testify at Petitioner’s trial. (Id. at 3.) On the basis of this

affidavit, Petitioner moved the trial court for a new trial. (Id. at 2.) The court

held a hearing and concluded that Petitioner had not satisfied the Oklahoma

standard for a new trial. (Tr. 11/21/97 at 15-17.) The Oklahoma Court of

Criminal Appeals reviewed this decision for an abuse of discretion and affirmed

on state law grounds. (OCCA Op. at 3.)

      The Oklahoma courts never addressed a federal constitutional claim insofar

as Brantley’s affidavit is concerned. Although the magistrate below recited that

Petitioner presented this claim to the OCCA on direct appeal and the state

apparently conceded exhaustion (Magistrate’s Rep. & Rec. at 2-5), our review of

Petitioner’s brief on direct appeal to the OCCA suggests that he asserted only a


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state claim with regard to the Brantley affidavit. (Aplt. Br. to OCCA at 16-17.)

Nevertheless, because the State of Oklahoma does not now assert either

exhaustion or procedural bar, we proceed to the merits of Petitioner’s federal

claim, which can easily be disposed of. Our review of the federal issue is de novo

because it was never addressed by the OCCA. Smallwood v. Gibson, 191 F.3d

1257, 1264 (10th Cir. 1999).

      Petitioner was denied habeas relief in the Western District of Oklahoma.

(Magistrate’s Rep. & Rec.; Order.) This Court granted Petitioner a Certificate of

Appealability on the issue of whether Petitioner was denied his constitutional

rights when the Oklahoma courts refused to grant him a new trial based on the

new evidence presented in Brantley’s affidavit.

      Petitioner contends that the Oklahoma courts’ failure to grant him a new

trial based on his newly discovered evidence violated his Sixth and Fourteenth

Amendment rights. Aside from maintaining that the affidavit proves his actual

innocence, however, Petitioner fails to assert any independent constitutional

violation occurring in his underlying criminal proceeding. “Claims of actual

innocence based on newly discovered evidence have never been held to state a

ground for federal habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506




                                        -3-
U.S. 390, 400 (1993) (addressing the petitioner’s claims under the Eighth and

Fourteenth Amendments).

      Herrera holds open the possibility that, in a capital case, newly discovered

evidence may be grounds for habeas relief from execution. Herrera, 506 U.S. at

417; Clayton v. Gibson, 199 F.3d 1162, 1179-80 (10th Cir. 1999) (applying

Herrera in the capital context). In this case, however, Petitioner received only a

life sentence; thus, this exception does not appear to apply to him. In any event,

the evidence that Petitioner offers falls far short of a “truly persuasive

demonstration of actual innocence.” Herrera, 506 U.S. at 417.

      Because Petitioner has failed to support his claims of independent

constitutional violations, we AFFIRM the district court’s denial of habeas relief.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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