                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 LARRY EUGENE WRIGHT,

          Petitioner-Appellant,

 v.                                                     No. 11-5086
                                           (D.C. No. 4:08-CV-00028-TCK-FHM)
 ERIC FRANKLIN, Warden                                  (N.D. Okla.)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



      Larry Wright filed a federal petition pursuant to 28 U.S.C. § 2254 seeking

relief from his Oklahoma convictions and sentences for armed robbery and

unlawful possession of a firearm. In response, the district court issued a detailed

opinion explaining its reasons for declining to award relief. Mr. Wright now asks

for a certificate of appealability (“COA”) to allow him to contest the district

court’s decision.




      *
         This order is not binding precedent except under the doctrines of law of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.
          We may grant a COA only if Mr. Wright makes a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard,

an applicant 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation

omitted). Because Mr. Wright proceeds in this court pro se, we review his

pleadings with special solicitude.

          Even so, we conclude that we cannot issue a COA. In this court, as in the

district court, Mr. Wright has sought to pursue three claims. None, however,

involves a situation where reasonable jurists could debate the decision to deny

relief.

          First, Mr. Wright claims that the prosecutors’ misconduct at his trial denied

him his federal constitutional right to a fair trial. Noting that state courts had

already provided him with some but not all the relief he had requested on this

claim, the district court concluded, after extensive discussion, that the state court

decision not to provide further relief was neither contrary to nor an unreasonable

application of federal law. Mr. Wright’s COA application affords us no basis on

which we might disagree with that considered conclusion. See Wright v.

Franklin, No. 08-CV-028-TCK-FHM, 2011 WL 1990035, at *3–*6 (N.D. Okla.

May 23, 2011).

                                            -2-
      Second, Mr. Wright argues that his federal equal protection rights were

offended by the state court’s jury instructions. We agree with the district court,

however, that this claim was not preserved for federal review. To be sure, Mr.

Wright pursued a related claim of error in his direct appeal, taking the question

whether the trial court’s jury instructions comported with state law to the state’s

highest court, the Oklahoma Court of Criminal Appeals (OCCA). See ROA 162

et seq. (raising state law claim on direct appeal); id. at 65 (OCCA ruling). But he

raised his federal equal protection claim involving the jury instructions used at his

trial only for the first time in his state collateral challenge. And he failed to

pursue that collateral challenge on appeal to the OCCA. His failure to do so, to

avail himself of all avenues available to him for relief under state law,

procedurally defaults the claim. See Johnson v. Champion, 288 F.3d 1215,

1226–27 (10th Cir. 2002). Neither has he shown that there was adequate cause

for his delay, or that a “fundamental miscarriage of justice” would result from the

default, such that we might potentially excuse his default. Coleman v. Thompson,

501 U.S. 722, 750 (1991).

      Third, Mr. Wright contends that his trial counsel’s ineffective assistance

violated his Sixth and Fourteenth Amendment rights. The district court found this

claim procedurally defaulted because it was included in his state collateral

challenge, a challenge that he (again) failed to pursue through appeal to the

OCCA. Wright, 2011 WL 1990035, at *7–*8. Mr. Wright, however, also pursued

                                           -3-
his ineffective assistance claim in his direct appeal — and the issue was

entertained and adjudicated by the OCCA. See ROA at 159 et seq. The OCCA

concluded that trial counsel had performed deficiently, but that there was

insufficient proof that counsel’s errors had prejudiced Mr. Wright. See id. at

62–64. On collateral review the state trial court declined to consider Mr.

Wright’s renewed ineffective assistance claim precisely because, in its view, the

claim had already been addressed and resolved on direct appeal. See id. at 73.

      But whether or not the claim is procedurally defaulted, there is no way we

might issue a COA. To make out a claim of ineffective assistance of counsel, a

petitioner must show that he was prejudiced by his lawyer’s deficient

performance. Strickland v. Washington, 466 U.S. 688, 694 (1984). What’s more,

because this case arises on collateral review and the OCCA ruled on the merits of

the claim, a federal court may intercede to afford Mr. Wright relief only if the

OCCA’s Strickland analysis — concluding that Mr. Wright suffered no prejudice

from his lawyer’s performance — was “contrary to, or 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). And it is plain that Mr.

Wright cannot clear this doubly deferential hurdle. As the OCCA noted, the state

presented significant evidence of Mr. Wright’s guilt, and the jury was instructed

in a manner designed to cure any defect arising out of the mistakes made by Mr.

Wright’s defense counsel. See ROA at 61, 64. We see no basis on which a

                                         -4-
reasonable jurist could think the OCCA’s Strickland prejudice assessment was

contrary to or an unreasonable application of federal law.

      The application for a COA is denied and this appeal is dismissed.


                                      ENTERED FOR THE COURT



                                      Neil M. Gorsuch
                                      Circuit Judge




                                        -5-
