                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         November 16, 2005
                                   TENTH CIRCUIT
                                                                           Clerk of Court

 BARRY WATSON,

                  Petitioner-Appellant,                   No. 04-6213
          v.                                            (W.D. of Okla.)
 DAYTON J. POPPELL, Warden,                        (D.C. No. 02-CV-346-T)

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                  *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **




      Petitioner-Appellant Barry Watson, a state prisoner appearing pro se, filed

a petition for writ of habeas corpus in the district court for the Western District of

Oklahoma pursuant to 28 U.S.C. § 2254. The district court denied Watson’s writ

of habeas corpus and also denied him a certificate of appealability (“COA”).




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order 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.
Because Watson has not made a substantial showing of a denial of a constitutional

right, 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.

                                  I. Background

      The parties to this action are familiar with the facts of the case and we need

not restate them in full. Watson was a suspect in a domestic disturbance and

burglary. Following a traffic stop of Watson’s vehicle, Watson left his vehicle

and, according to officers, appeared to be throwing a substance that was later

identified as crack cocaine. Watson was subsequently arrested and charged with a

number of crimes, including assault and battery, burglary and possession of a

controlled dangerous substance.

      Watson was convicted in Oklahoma state court and the Oklahoma Court of

Criminal Appeals affirmed his conviction. Watson then filed an application for

post-conviction relief with the Oklahoma County District Court. The district

court denied his petition, and the Oklahoma Court of Criminal Appeals affirmed.

      In his petition to the federal district court, Watson put forth six claims: (1)

trial counsel was ineffective; (2) he was subject to prosecutorial misconduct; (3)

appellate counsel and trial counsel had a conflict of interest; (4) appellate counsel

was ineffective; (5) the prosecution used its peremptory challenges in a

discriminatory manner; and (6) his sentence was improperly enhanced. The

federal magistrate judge entered a comprehensive twenty-nine page report


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recommending that Watson’s request for habeas relief be denied. The district

court for the Western District of Oklahoma adopted the report in its entirety and

denied Watson’s claims. The district court also denied a COA. In his brief to

this court, Watson simply reiterated his claims before the district court and also

filed a “motion to expand certificate of appealability,” in which he argued that

ineffective assistance of counsel establishes cause for state procedural default.

                                    II. Legal Issues

       A COA may issue if Watson “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2);    see also United States v.

Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). To make this showing, “a

petitioner must “show that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation

omitted). Our role is not to engage in a “full consideration of the factual or legal

bases adduced in support of the claims,” but rather we merely conduct an

“overview of the claims in the habeas petition and a general assessment of their

merits.” Id.

       Where, as was the case with several of the claims at issue here, the district

court denies a habeas petition on procedural grounds without reaching the


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underlying constitutional claim, a COA may issue if the habeas petitioner shows

(1) reasonable jurists would find it debatable whether the petition states a valid

claim of the denial of the constitutional right, and (2) reasonable jurists would

find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel , 529 U.S. 473, 484 (2000). Thus, with respect to those types

of claims, Watson must show that he has been denied a constitutional right       and

that the district court erred in its procedural ruling. We may deny a COA on

either of these two prongs.    Id. at 485.

       With these principles in mind, we review Watson’s claims.

       A.     Ineffective Assistance of Trial Counsel/Prosecutorial
              Misconduct

       The magistrate judge recommended Watson’s first and second claims be

denied because he failed to raise these issues on direct appeal. As fully

developed by the magistrate judge, these claims are procedurally defaulted.

While it is true “[a] showing that a defendant received ineffective assistance of

counsel will establish cause excusing a procedural default,”       Ellis v. Hargett , 302

F.3d 1182, 1186 (10th Cir. 2002), to meet this standard, Watson must satisfy the

familiar two-part test for ineffective assistance established in    Strickland v.

Washington , 466 U.S. 668, 688 (1984). Specifically, he must show that (1)

counsel’s performance fell below an objective standard of reasonableness and (2)

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

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proceedings would have been different.     Id. The magistrate judge’s application of

Strickland is correct and we agree that Watson has not shown any reason to

believe the outcome of his direct appeal would have been different if these two

theories had been advanced at trial.

      B.     Conflict of Interest/Ineffective Assistance of Appellate Counsel

      Watson next argues that his appellate counsel had a conflict of interest

because both appellate and trial counsel were part of the Oklahoma Public

Defender Office. As the magistrate judge correctly explained, under our case law,

no inherent conflict exists merely because appellate and trial counsel are both

employed by the Public Defender’s Office.

      Watson also argues that appellate counsel was ineffective due to counsel’s

failure to raise ineffective assistance of trial counsel and prosecutorial misconduct

on direct appeal. Again, for the reasons set forth in the magistrate judge’s

opinion, since Watson fails to meet the    Strickland standard as to trial counsel, his

appellate counsel could not be ineffective for failing to pursue the claim on

appeal.

      C.     Improper Use of Peremptory Challenges

      Watson next argues that the prosecution engaged in racial discrimination in

its exercise of peremptory challenges during jury selection. The magistrate judge

demonstrated that Watson failed to meet the standards established in      Batson v.


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Kentucky , 476 U.S. 79 (1986). In short, Oklahoma prosecutors provided

sufficient race-neutral explanations for each peremptory challenge, and the record

does not support Watson’s claim that prosecutors discriminated on the basis of

race.

        D.    Sentence Enhancement

        Finally, Watson claims the trial court improperly increased his sentence by

using prior convictions which arose from a single criminal episode. Again, as the

magistrate judge explained, this claim fails. Watson conceded five prior

convictions. Oklahoma sentencing law allowed for the enhancement after only

two convictions. Thus, Watson cannot show any harm arising from the use of

convictions that may have arisen from a single criminal episode.

        Accordingly, we DENY a COA and DISMISS the appeal, and we DENY

Appellant’s motion to proceed   in forma pauperis .


                                       Entered for the Court


                                       Timothy M. Tymkovich
                                       Circuit Judge




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