                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 29 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 GUY GRANVILLE WILLIAMS,

          Petitioner - Appellant,
                                                        No. 99-6165
 v.
                                                 (D.C. No. CIV-98-614-R)
                                               (Western District of Oklahoma)
 H. N. SCOTT,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Pro se petitioner Guy Granville Williams seeks a certificate of

appealability, pursuant to 28 U.S.C. § 2253(c), to challenge the district court’s

dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. §

2254. The district court dismissed Williams’ petition due to a state procedural

bar and Williams’ failure to allege a cognizable constitutional claim against the

state. Williams brought two claims: first, that the court violated his due process


      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and equal protection rights by failing to advise him of his right to be represented

by appointed counsel on direct appeal; and second, that the state’s judicial

procedures were inadequate to afford him a full and fair determination on the

merits of his claims because he was not afforded an evidentiary hearing in his

second post-conviction proceeding. We decline to issue a certificate of

appealablity. See 28 U.S.C. § 2253(c)(2).

      Following pleas of guilty to murder in the first degree and assault and

battery with a deadly weapon with intent to kill, Williams was sentenced, on

September 30, 1981, to two concurrent terms of life imprisonment. At

sentencing, Williams, represented by counsel, waived Oklahoma’s normal 10-day

period in which to file a direct appeal of his conviction. He did not move to

withdraw his guilty pleas or to file a direct appeal.

      Williams first sought to challenge his conviction and sentence in an

application for state post-conviction relief, filed in January 1983. He argued that

his guilty pleas were tainted with unconstitutionality due to the failure of the trial

court and counsel to advise him as to the nature and essential elements of the

crimes to which he had pled guilty; and that failure to advise him of those matters

was tantamount to ineffective assistance of counsel. The state district court

denied Williams’ application on May 4, 1983, finding his claims to be without




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merit, and Williams appealed. The Oklahoma Court of Criminal Appeals affirmed

the denial of his application in an order filed on May 12, 1983.

          In a second application for state post-conviction relief, filed in August

1996, Williams claimed that the trial court denied him the right to appeal by

failing to inform him of his right to be represented by appointed counsel on direct

appeal. The district court held that Mr. Williams’ new claim was barred under the

Oklahoma Post-Conviction Procedure Act, 22 Okla. Stat. Ann §§ 1080-87, which

states:

          All grounds for relief available to an applicant under this act must be raised
          in his original, supplemental or amended application. Any ground finally
          adjudicated or not so raised, or knowingly, voluntarily and intelligently
          waived in the proceeding that resulted in the conviction or sentence or in
          any other proceeding the applicant has taken to secure relief may not be the
          basis for a subsequent application unless the court finds a ground for relief
          asserted which for sufficient reason was not asserted or was inadequately
          raised in the prior application.

22 Okla. Stat. Ann. § 1086. The Oklahoma Court of Criminal Appeals affirmed,

reiterating the district court’s holding that his new claim was procedurally barred

and stating that he had “failed to provide a sufficient reason for this failure to

present his claim within his first post-conviction application.”

          In May 1998 Williams filed a petition for a writ of habeas corpus in federal

district court. The district court denied Williams relief on both his claims on the

grounds that they are procedurally barred by his failure to raise them in his first



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petition for post-conviction relief, adding that even if his claims had not been

procedurally barred, the court deny the petition on the merits.

       We agree with the district court that Oklahoma’s procedural bar rule is

“independent” and “adequate” and that William’s failed to show “cause and

prejudice” or a “fundamental miscarriage of justice” sufficient to overcome his

procedural default of his right to appeal claim.   See Coleman v. Thompson , 501

U.S. 722, 750 (1991).

       Williams also claims that the Oklahoma courts denied him evidentiary

hearings on his second post-conviction petition in violation of their procedural

rules. Even if Williams could overcome his procedural default, he is not entitled

to a certificate of appealability because we can find no indication that Oklahoma

violated its own rules of judicial procedure by failing to grant Williams

evidentiary hearings on his post-conviction petitions. Under the Oklahoma Post-

Conviction Procedure Act, 22     Okla. Stat. Ann. § 1084, an Oklahoma court must

conduct an evidentiary hearing on appeal only “[i]f the application cannot be

disposed of on the pleadings and record, or there exists a material issue of fact.”

In the present case, Williams has made no showing either that the application

could not be resolved on the pleadings and record or of a material issue of fact.

Williams fails to present any cognizable federal due process claim.




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A certificate of appealability is DENIED. This matter is DISMISSED.

                              ENTERED FOR THE COURT,

                              Carlos F. Lucero
                              Circuit Judge




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