                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        January 12, 2007
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court


 JOSEPH LAVON W EBSTER,

          Petitioner-A ppellant,
 v.                                                        No. 06-6207
 A TTO RN EY G EN ER AL O F THE                    (D.C. No. CIV-04-1663-F)
 STA TE OF O K LA H O MA ,                               (W . D. Okla.)

          Respondent-Appellee.




            OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.


      Joseph Lavon W ebster, a state prisoner appearing pro se, seeks to appeal the

district court’s denial of his 28 U .S.C. § 2254 petition for a writ of habeas corpus.

The matter is before this court on W ebster’s request for a certificate of appealability

(“C OA ”). O ur jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a), and, as w e

determine that W ebster 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,

483-84 (2000), we deny a COA and dismiss the matter.

      W ebster was convicted by an Oklahoma jury for trafficking in illegal drugs


      *
        This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel.
w ith a cocaine base and thereafter sentenced to forty-five years of imprisonment. H e

filed a direct appeal of his conviction, which the Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed by summary opinion. W ebster subsequently sought

post-conviction relief which was denied by the state district court. He sought review

of the state district court’s denial of his request for post-conviction relief, but the

OCCA dismissed the appeal as untimely and his application to file an appeal out of

time was denied by the state district court. W ebster thereafter filed a petition under

28 U.S.C. § 2254 in federal court arguing (1) the trial court erred in failing to

suppress contraband evidence, (2) a Brady violation, and (3) ineffective assistance

of counsel. Adopting the thorough report and recommendation of the magistrate

judge, the federal district court denied this petition.

      W ebster has filed a notice of appeal from the denial of his § 2254 petition, a

brief in support, and an application for a CO A.          A C OA is a jurisdictional

prerequisite.   M iller-El v. Cockrell, 537 U.S. 322, 336 (2003).        W e construe

W ebster’s appellate brief in support of his notice of appeal as additional argument

in support of his application for a COA. This court can issue a CO A only “if the

applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” M iller-El, 537 U.S. at 327. This

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determination “requires an overview of the claims in the habeas petition and a

general assessment of their merits.” Id. at 336. W ebster is not required to prove the

merits of his case, but he must nonetheless demonstrate “something more than the

absence of frivolity” or the mere existence of good faith on his part. Id. at 338

(internal quotation marks omitted). Under § 2254, we may grant a COA on a claim

that was adjudicated on the merits in state court only if the state court’s decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or “was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

      Having undertaken a review of W ebster’s application for a COA and appellate

filings, the district court’s order, and the entire record on appeal pursuant to the

framew ork set out by the Suprem e C ourt in M iller-El, we conclude W ebster is not

entitled to a COA. For the following reasons, the district court’s resolution of

W ebster’s § 2254 motion is not reasonably subject to debate and the issues he seeks

to raise on appeal are not adequate to deserve further proceedings.

      W ebster first argues that his conviction rests upon evidence obtained as the

result of an unconstitutional search and seizure. The district court concluded that the

Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976) barred W ebster’s

claim. In Stone, the Court held that, “w here the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, the Constitution does not

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require that a state prisoner be granted federal habeas corpus relief on the ground

that evidence obtained in an unconstitutional search or seizure was introduced at his

trial.” Id. at 481-82. Such an opportunity m ay occur at trial or on direct appeal.

Stone, 428 U.S. at 494, n.37. W e would review de novo whether a petitioner had an

opportunity for full and fair litigation of his Fourth Amendment claim. Smallwood

v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999).

      At trial, W ebster did not seek the suppression of any evidence. O n direct

appeal, he raised the failure of the trial court to suppress evidence in violation of the

Fourth Amendment and of Article II, Section 30 of Oklahom a’s Constitution. The

OCCA rejected W ebster’s claim for two reasons. First, it held that the evidence in

question had been abandoned.       Second, after thoroughly considering W ebster’s

allegation in light of the record, the O CCA also determined that the stop in question

was a proper investigatory stop, based upon a reasonable suspicion of illegal activity.

      In denying his § 2254 petition, the district court determined that W ebster had

an opportunity to fully and fairly litigate these claims in state court. Specifically,

the district court pointed to O klahoma law , as w ell as U nited State Supreme Court

precedent, for the proposition that “[w]hen one voluntarily abandons property, he has

no standing to complain of its search and seizure.” M enefee v. State, 640 P.2d 1381,

1385 (Okla. Crim. App. 1982) (citing Abel v. United States, 362 U.S. 217, 241

(1960)).   Alternatively, the district court noted that the OCCA had thoroughly

considered the entire record and had cited the applicable case law in determining that

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the conduct of law enforcement was reasonable and lawful. See, e.g., Terry v. Ohio,

392 U.S. 1, 21-22 (1968) (holding that an investigatory stop may be justified by

reasonable suspicion that falls short of probable cause); Adams v. W illiams, 407 U.S.

143, 147-48 (1972) (holding that the fact that an investigatory stop took place in a

“high crim e area” is pertinent to a Terry analysis); Illinois v. W ardlow, 528 U.S.

119, 124 (2000) (holding that unprovoked flight is “not necessarily indicative of

wrongdoing, but it is certainly suggestive of such”). W e agree with the district court

that W ebster had a full and fair opportunity to present his Fourth Amendment claim

in state court proceedings. Thus, W ebster is not entitled to a CO A as to this claim.

      W ebster characterizes his next request for relief as a “Brady violation”

wherein he essentially argues that certain information was improperly withheld from

the jury at trial. W ebster did not raise this issue on direct appeal. Following the

affirmance of his conviction on direct appeal, he filed a request for post-conviction

relief in the state district court, which was denied. Thereafter, W ebster appealed to

the OCCA the state district court’s denial of his request for post-conviction relief.

However, the OCCA denied W ebster’s appeal as untimely under Rule 5.2(C) of the

Oklahoma Rules of the Court of Criminal Appeals, because he failed to include with

his appeal either the required filing fee or a completed affidavit to proceed in forma

pauperis. See Okla. Stat. tit. 22, Ch 18, App. Rule 5.2(C)(2) (“If the post conviction

appeal arises from a . . . regular felony conviction, [it] must be filed within thirty

(30) days from the date [of] the final order of the D istrict Court . . . .”); see also

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Okla. Stat. tit. 22, Ch 18, A pp. Rule 1.11 (“A pleading shall not be considered filed

. . . until such time as the filing fee is paid or an ‘Affidavit in Forma Pauperis’ is

properly filed.”). In that denial, the OCCA advised W ebster that insofar as he sought

to pursue his appeal further, he was required to apply to the state district court for

a post-conviction appeal out of time. See Okla. Stat. tit. 22, Ch 18, App. Rule 2.1(E)

(“A petitioner’s right to appeal [out of time] is dependent upon the ability to prove

he/she was denied an appeal through no fault of his/her ow n.”). W ebster filed such

an application, arguing that he misunderstood when his thirty days to appeal began

to run, that prison procedures hindered his timely compliance, and that the mail

system generally failed.     Nonetheless, the state district court rejected these

arguments and denied W ebster permission to file an untimely appeal.

      Under the doctrine of procedural default, a federal court undertaking habeas

review will not review a claim that has been defaulted in state court on an

independent and adequate state procedural ground unless the petitioner demonstrates

cause for default and actual prejudice, or, alternatively, demonstrates a fundamental

miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Here,

in denying W ebster’s § 2254 petition, the district court correctly concluded that

W ebster’s failure to seek timely appellate review in state court constituted a

procedural default of his Brady claim. Duvall v. Reyonolds, 139 F.3d 768, 797 (10th

Cir. 1998) (determining that Rule 5.2(C) is an independent and adequate state ground

sufficient to bar habeas relief, absent a showing of cause and prejudice or,

                                         -6-
alternatively, a miscarriage of justice). A pplying the cause-and-prejudice test for

overcoming procedural default, and recognizing that a state court’s factual

determination that an appeal was denied due to a petitioner’s own fault is presumed

to be correct, see 28 U.S.C. 2254(e)(1), the district court correctly concluded

W ebster had not demonstrated cause to overcome his procedural default. W e too

conclude that W ebster failed to demonstrate cause and prejudice for his procedural

default, or that failure to consider his claim will result in a fundamental miscarriage

of justice. Accordingly, we conclude that W ebster is not entitled to a COA on this

ground because his claim is barred.

      W ebster’s last argument is two-fold. W ebster primarily argues that his trial

counsel was ineffective because his counsel failed to move to suppress contraband

evidence. As noted above, W ebster raised this issue on direct appeal and the OCCA

determined, in accord with applicable Supreme Court and O klahoma precedent, that

the evidence at issue had been abandoned and that the conduct of law enforcement

was reasonable and lawful. In that same order, the OCCA held that there had been

no ineffective assistance of counsel. In denying W ebster’s § 2254 petition, the

district court determined that the O C C A reasonably applied           Strickland v.

W ashington, 466 U .S. 668 (1984). W e agree. Under the two-part test established

by the Court in Strickland v. W ashington, 466 U.S. 668 (1984), W ebster must prove

that “counsel’s representation fell below an objective standard of reasonableness”

and that “any deficiencies in counsel’s perform ance [were] prejudicial to the

                                          -7-
defense.” Id. at 688, 692. W e examine such claims with a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

Id. at 689. In applying the Strickland standard, “we look to the merits of the omitted

issue” in the context of counsel’s overall defense strategy. Neill v. Gibson, 278 F.3d

1044, 1057 (10th Cir. 2001) (quoting Hooks v. W ard, 184 F.3d 1206, 1221 (10th

C ir.1999)). Further deference is credited to the OC CA under AEDPA, in that w e

grant relief only if the OCCA unreasonably applied the Strickland standard. 28

U.S.C. § 2254(d)(1). Here, W ebster cites no legal authority which would have

supported his present Fourth Amendment argument, or which would have led to the

suppression of evidence.     As such, we too conclude that the OCCA reasonably

applied Strickland.

      Next, W ebster attempts to raise numerous additional claims of ineffective

assistance of counsel which he did not raise on direct appeal. Specifically, W ebster

alleges various instances of his trial counsel’s failure to conduct a proper pre-trial

investigation of his case. The record before us is unclear as to whether W ebster

raised these issues for the first time in his application for post-conviction relief or

whether he raised these issues for the first time in his § 2254 petition.

      In either event, we are prohibited from reviewing these claims on the merits.

Assuming these issues w ere first raised in W ebster’s motion for post-conviction

relief, they are procedurally barred for the sam e reasons W ebster’s Brady claim is

barred, that is, because Webster failed to seek timely appellate review by the OCCA,

                                          -8-
or to show cause and prejudice or a miscarriage of justice sufficient to overcome a

procedural bar. 1 Assuming that W ebster failed to raise these additional allegations

of ineffective assistance of counsel in his state court application for post-conviction

relief, he has failed to exhaust his ineffective assistance of counsel claims.

Smallwood, 191 F.3d at 1267 (holding ineffective assistance of counsel claim

unexhausted where petitioner failed to properly raise before the state court any of the

bases upon which ineffective assistance of counsel claim was based in § 2254

petition). However, dismissal without prejudice for failure to exhaust state remedies

is not appropriate if the state court would now find the claim s procedurally barred

on independent and adequate state procedural grounds. Id. Such is the case here,

because, if W ebster returned to state court to file a second application for post-

conviction relief, he would be procedurally barred. See id.; see also Okla. Stat. tit.

22, § 1086 (stating that a second post-conviction relief application cannot be based



      1
        Our opinion in Breechen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994) does not
require a different result. In Breechen, we held that an ineffective assistance of
counsel claim may be considered on federal habeas review despite a state court
finding that the claim was procedurally defaulted because it had not been raised on
direct appeal. Id. at 1363-64. The decision reflected our concern that it would be
unfair to limit such a claim to direct appeal in light of the need for additional fact-
finding and the need to permit consultation with separate counsel to obtain an
objective assessment of trial counsel’s performance. See M oore v. Reynolds, 153
F.3d 1086, 1096-97 (10th Cir. 1998). Here, in contrast, we assume W ebster’s claim
was considered on its merits in a state post-conviction proceeding, but was defaulted
because he failed to timely appeal that decision. The concerns in Brecheen, thus, are
not implicated. See M oore, 153 F.3d at 1096-97 (holding an ineffective assistance
of counsel claim raised for the first time in a successive post-conviction petition was
procedurally barred despite Breechen).

                                          -9-
on claims that were not raised in an original, supplemental or amended application).

Thus, in either event, this claim is procedurally barred.

      Finally, even if we were to address W ebster’s additional allegations of

ineffective assistance on the merits, we would conclude that they are facial,

undeveloped and fail to show objectively ineffective representation by his trial

counsel that resulted in prejudice. For all these reasons, we conclude that W ebster

is not entitled to a COA on his ineffective assistance of counsel claims.

      In sum, W ebster has failed to make a substantial showing of the denial of a

constitutional right. Accordingly, we DENY W ebster’s application for a COA and

DISM ISS this matter.


                                                Entered for the Court


                                                M ary Beck Briscoe
                                                Circuit Judge




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