                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        June 16, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 FRANK EARL M CCARRELL, JR.,

              Petitioner-A ppellant,                   No. 06-6040
       v.                                            (W .D. Oklahoma)
                                                (D.C. No. CIV-05-1003-W )
 JUSTIN JONES,

              Respondent-Appellee.




                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      Frank Earl M cCarrell, Jr., an Oklahoma state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal the district court’s decision

dismissing his 28 U.S.C. § 2254 petition for a w rit of habeas corpus. M r.

M cCarrell also seeks to proceed in forma pauperis (“IFP”). Because we

determine that he has not made “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473,

484 (2000), we deny his request for a COA and dismiss the matter. W e grant his

motion to proceed IFP.
                                  I. BACKGROUND

      M r. M cCarrell was charged with possession of a controlled dangerous

substance w ith intent to distribute, in violation of Okla. Stat. tit. 63, § 2-401. O n

M ay 20, 1993, a jury acquitted M r. M cCarrell on this charge, but convicted him

of the lesser included offense of possession of a controlled dangerous substance

(cocaine base) and sentenced him to forty years of imprisonment. His conviction

and sentence were affirmed on direct review. M r. M cCarrell also sought

postconviction relief, which was denied.

      In his § 2254 petition, and before us, M r. M cCarrell raises five propositions

of error. First, he contends that the State failed to elect the enhancement

provision under w hich it was going to proceed, resulting in the trial court’s failure

to properly instruct the jury during the sentencing phase of the trial. Second and

third, he contends that his trial and appellate counsel were ineffective for not

raising this enhancement claim. Fourth, he challenges the denial of his motion to

suppress evidence based upon an illegal arrest and lack of probable cause, in

violation of his Fourth Amendment rights. Fifth and finally, M r. M cCarrell

challenges the trial court’s instructing the jury to consider evidence of flight.

      The magistrate judge recommended dismissal of each of the above claims,

and recommended the denial of habeas relief. The district court adopted the

magistrate judge’s report and recommendation, and denied M r. M cCarrell’s

application for a certificate of appealability. For substantially the same reasons

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provided in the magistrate judge’s thorough and well-reasoned report and

recommendation, we reject M r. M cCarrell’s arguments.

                                  II. DISCUSSION

      Issuance of a COA is jurisdictional. M iller-El v. Cockrell, 537 U.S. 322

(2003). A COA can issue only “if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, he

must demonstrate “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, 529 U.S. at 484 (internal quotation marks and citation omitted).

      M r. M cCarrell did not raise claims one through three on direct appeal. W e

agree with the magistrate judge and district court that M r. M cCarell cannot show

cause for his procedural default of his first two claims (State’s failure to elect

enhancement and ineffective assistance of trial counsel for failing to object to the

State’s failure). See Coleman v. Thom pson, 501 U.S. 722, 750 (1991); Hickman

v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). Similarly, he cannot establish

that a fundamental miscarriage of justice will occur if we do not consider his

procedurally defaulted claims here. See Phillips v. Ferguson, 182 F.3d 769, 774

(10th Cir. 1999) (“To prevail [on the fundamental miscarriage of justice

exception, petitioner] must identify evidence that affirmatively demonstrates his

innocence.”).

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      W e also agree that the failure to challenge the State’s actions on direct

appeal did not constitute ineffective assistance of appellate counsel because

raising that issue would not have resulted in M r. M cCarrell obtaining relief on

appeal. Thus, his claim for ineffective assistance of appellate counsel also fails.

      As to M r. M cCarrell’s Fourth Amendment argument, we hold that he had a

full and fair opportunity to litigate the issue in state court. Both the state trial and

appellate court rejected this claim on the merits. Under Stone v. Powell, 428 U.S.

465, 481-82 (1976), federal habeas relief is precluded. Finally, as to the trial

court’s instructions regarding M r. M cCarrell’s flight, we agree that we may

consider such contentions only if “they are so fundamentally unfair as to deprive

petitioner of a fair trial and to due process of law.” Nguyen v. Reynolds, 131 F.3d

1340, 1357 (10th Cir. 1997) (citing Long v. Smith, 663 F.2d 18, 23 (6th Cir.

1981)). W e agree with the magistrate judge and district court that, because of the

overwhelming evidence of M r. M cCarrell’s guilt, “any error in giving the flight

instruction would have had little effect.” Rec. doc. 16, at 11 (M agistrate Judge’s

Report and Recommendation, dated Dec. 20, 2005).

      W e have carefully reviewed M r. M cCarrell’s brief, the magistrate judge’s

report and recommendation, district court’s disposition, and the record on appeal.

Nothing in the facts, the record on appeal, or M r. M cCarrell’s filings raises an

issue which meets our standards for the grant of a CO A. For substantially the

same reasons as set forth by the district court, we cannot say that it is “debatable

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whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at

484.

                                III. CONCLUSION

       W e DENY M r. M cCarrell’s request for a certificate of appealability, deny

his motion to proceed IFP, and DISM ISS the matter.




                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




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