                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 9 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JOSE PEREZ SIERRA,

          Petitioner - Appellant,
 v.
                                                        No. 02-6054
 ELVIS HIGHTOWER; THE                             (D.C. No. 01-CV-605-A)
 ATTORNEY GENERAL OF THE                             (W.D. Oklahoma)
 STATE OF OKLAHOMA; STATE OF
 OKLAHOMA,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.




      Jose Perez Sierra was convicted of trafficking in illegal drugs after

conviction of two or more felonies in Oklahoma state court in 1994 and sentenced

to 200 years’ imprisonment and a $100,000 fine. In his present habeas petition,


      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Sierra asserts five grounds for relief: (1) the allegedly false testimony of a witness

against him, (2) the admission of certain evidence during state post-conviction

proceedings, (3) the failure of the state district court to address certain issues

during state post-conviction proceedings, (4) the discussion by the state trial court

of certain issues during state post-conviction proceedings, and (5) ineffective

assistance of counsel during a state post-conviction evidentiary hearing.

      The district court denied relief on the first ground based on its conclusion

that the issue was untimely asserted under the applicable one-year statute of

limitations. We grant a certificate of appealability (COA) on the first ground but

affirm the denial of relief because our consideration of this difficult issue is

precluded by the state court’s dismissal of the claim on adequate and independent

state procedural grounds, namely Sierra’s failure to include a copy of the trial

court’s order with his post-conviction appeal. See Duvall v. Reynolds, 139 F.3d

768, 797 (10th Cir. 1998) (holding that Oklahoma’s rule mandating dismissal of

an appeal for failure to include a copy of the decision below is an adequate and

independent state procedural ground).

      The district court also denied relief on the second through fifth grounds,

concluding that these issues were procedurally defaulted and that Sierra failed to

challenge the magistrate judge’s conclusion that these issues were not cognizable




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on federal habeas review. As to the second through fifth issues, we deny a COA

and dismiss the appeal substantially for the reasons given by the district court.




                                  CONCLUSION

      Sierra’s motion to proceed in forma pauperis is GRANTED. Sierra’s

motion for a COA is GRANTED PART and DENIED IN PART. As to the issue

on which COA is granted, the district court’s judgment is AFFIRMED. As to the

issues on which COA is denied, the appeal is DISMISSED.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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