                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                November 29, 2007
                               TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                    Clerk of Court

 TRAVIS W. GIBSON,

             Petitioner - Appellant,                    No. 07-5060
       v.                                               N. D. Okla.
 STATE OF OKLAHOMA,                          (D.C. No. 03-CV-405-CVE-PJC)

             Respondents - Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      In a thorough opinion and order the district court dismissed Travis Gibson’s

28 U.S.C. § 2254 petition for habeas corpus because his claims were

procedurally defaulted. Gibson failed to exhaust his state remedies in that he did
not appeal from his felony conviction, entered based upon his Alford plea, 1 to the

Oklahoma Court of Criminal Appeals (OCCA). The district court chose not to

dismiss the unexhausted claims because to do so would be futile since the claims

were procedurally barred under Oklahoma law (failure to take a direct appeal or

failure to raise an issue in a direct appeal bars collateral review of the issue). 2

The court afforded Gibson an opportunity to overcome the procedural bar by

showing cause (external factors impeded his ability to comply with state

procedural rules) and prejudice (actual prejudice resulting from the error about

which he complains) or a fundamental miscarriage of justice (actual innocence).

      Gibson responded with a claim of actual innocence based upon an argument

that Oklahoma law was misinterpreted or misapplied. The district court

appropriately dealt with that claim, concluding his argument confused factual

innocence (which he was required to, but did not, demonstrate) with legal

innocence (which is insufficient). The specifics of his claims and arguments are

well set out by the district court and will not be repeated here. After dismissing

Gibson’s habeas petition the district court denied his request for a certificate of

appealability (COA). He has repeated his request for a COA to this Court. We

      1
        “An ‘Alford” plea, named after the Supreme Court’s decision in North
Carolina v. Alford, is a plea denominated as a guilty plea but accompanied by
protestations of innocence.” United States v. Buonocore, 416 F.3d 1124, 1128 n.2
(10th Cir. 2005).
      2
        The defendant also filed two post-conviction petitions in the state trial
court, which were denied. He did not appeal either adverse ruling to the OCCA.

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also deny the request.

      The district court’s dismissal was clearly, concisely and correctly stated.

Jurists of reason would not disagree with the result. Miller-El v. Cockrell, 537

U.S. 322, 336 (2003).

      We DENY Gibson’s request for COA and DISMISS his putative appeal.



                                       FOR THE COURT:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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