                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 1 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    AUBRY VASHUN CLAYTON,

                Petitioner-Appellant,

    v.                                                    No. 00-7036
                                                    (D.C. No. 98-CV-507-S)
    BOBBY BOONE, Warden;                                  (E.D. Okla.)
    Mack Alford Correctional Center;
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, EBEL , and BRISCOE , Circuit Judges.



         After examining the briefs and 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); 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      This order and judgment is not binding precedent, except under the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.
      Petitioner Aubry Vashun Clayton, a state inmate, seeks a certificate of

appealability (COA) to challenge a district court order denying his petition for

a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court

denied his request for COA. We also deny Clayton’s COA application and

dismiss the appeal.

      Clayton was convicted in Oklahoma of second degree murder in 1991 and

sentenced to fifty years’ imprisonment. He appealed, and his case was assigned

to a three-judge panel of the Emergency Appellate Division of the Oklahoma

Court of Criminal Appeals, selected from a pool of judges appointed by the Chief

Justice of the Oklahoma Supreme Court.   1
                                             The emergency panel affirmed his

conviction and sentence. Petitioner claims his counsel did not inform him of the

emergency panel’s decision in time to permit an appeal to the Oklahoma Court of

Criminal Appeals.

      Clayton then filed an application for state post-conviction relief raising five

issues, and requesting that he be allowed to file an out-of-time appeal from the

emergency panel’s decision. The state county court recommended that Clayton be

allowed to file an out-of-time appeal, but denied all of his remaining claims for



1
       The Oklahoma Court of Criminal Appeals has the power to assign certain
cases to an emergency panel and to review the decision of an emergency panel
upon the filing of a petition for review. Okla. Stat. tit. 20, §§ 60.1-60.5; Jackson
v. Freeman , 905 P.2d 217, 219-22 (Okla. 1995).

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post-conviction relief. On appeal, the Oklahoma Court of Criminal Appeals

affirmed the denial of his post-conviction claims for relief, but rejected

Clayton’s request to file an out-of-time appeal. The court noted that petitions

for review of an emergency panel’s decision are granted in only very limited

circumstances.   See Rule 12.10(B), Rules of the Oklahoma Court of Criminal

Appeals, Okla. Stat. tit. 22, ch. 18, app. Because Clayton did not contend that he

met any of these criteria, the Oklahoma Court of Criminal Appeals held that he

was not entitled to an out-of-time appeal from the emergency panel’s decision.

      Clayton then filed his § 2254 petition on October 23, 1998, asserting his

constitutional due process and equal protection rights were violated because

(1) his rights to a statutory appellate procedure were lost due to his appellate

counsel’s ineffectiveness and negligence; (2) Oklahoma did not provide him with

a lawful direct appeal as guaranteed by the state constitution; (3) Oklahoma did

not follow mandatory procedures for juvenile offenders who are charged with

serious crimes as adults; (4) the state trial court admitted his allegedly coerced

and involuntary confession into evidence at trial; (5) the trial court failed to

instruct the jury on manslaughter in the first degree; (6) he had ineffective

assistance of trial counsel; and (7) he had ineffective assistance of appellate

counsel.




                                          -3-
      In detailed and well-reasoned findings and recommendations, the magistrate

judge recommended that relief be denied and that Clayton’s habeas petition be

dismissed. The magistrate judge concluded that Clayton’s constitutional rights

had not been violated by his counsel’s failure to file a petition for review of the

emergency panel’s decision because Clayton had not demonstrated his right under

Oklahoma state law to such a discretionary appeal. He further concluded

Clayton’s claims concerning the appointment and composition of the emergency

panel, the state’s failure to provide notice of the information filed against him to

his incarcerated father, the police questioning of him outside the presence of a

parent or guardian, and the trial court’s failure to instruct the jury on first degree

manslaughter were issues of state law not cognizable in a § 2254 habeas petition.

See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000). The magistrate

judge also concluded that Clayton’s involuntary confession claim was

procedurally barred, and that Clayton failed to show prejudice with respect to his

ineffective assistance of counsel claims.

      After a de novo review, the district court adopted the magistrate judge’s

findings and recommendations, and dismissed the appeal. The district court also

denied petitioner’s application for a COA, required by 28 U.S.C. § 2253(c)(1)(A)

for petitioner to appeal the denial of his § 2254 petition. Petitioner then filed




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a notice of appeal, which we construe as a renewed application for COA in

accordance with Fed. R. App. P. 22(b)(2).

      In his brief supporting his application for COA, Clayton raises the same

claims and reasserts the same arguments he made before the district court. With

one minor exception, we find nothing to add to the magistrate judge’s thorough

report and recommendation. Clayton contends the magistrate judge and the

district court failed to address his argument that the assignment of his appeal to

the Emergency Appellate Division of the Oklahoma Court of Criminal Appeals,

rather than to a regular panel of the court, two years after his conviction violates

the ex post facto clause of the federal Constitution. Because review of his appeal

by an emergency panel “neither made criminal a theretofore innocent act, nor

aggravated a crime previously committed, nor provided greater punishment, nor

changed the proof necessary to convict,” the     ex post facto clause is not

implicated. Dobbert v. Florida , 432 U.S. 282, 293 (1977).

      Upon review of Clayton’s COA application, supporting brief and the record

filed on appeal, we conclude for substantially the reasons stated in the magistrate

judge’s report and recommendation, that Clayton has failed to make a substantial

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

§ 2253(c)(2) to obtain a COA. He has not demonstrated “that jurists of reason

would find it debatable whether the district court was correct” in either its


                                           -5-
substantive constitutional analysis or its procedural rulings.     Slack v. McDaniel ,

529 U.S. 473, ___, 120 S. Ct. 1595, 1604 (2000). We therefore DENY his

application for COA and DISMISS this appeal.



                                                          Entered for the Court



                                                          Deanell Reece Tacha
                                                          Chief Judge




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