                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            DEC 7 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


DONNY GENE CLAUNCH,

             Petitioner-Appellant,

v.
                                                       No. 98-6279
                                                 (W. District of Oklahoma)
EDWARD L. EVANS, Warden; THE
                                                 (D.C. No. CIV-97-500-L)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,

             Respondents-Appellees.




                          ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      After examining the briefs and 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); 10th Cir. R. 34.1.9. The court

therefore orders the case 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       This order and judgment is not binding precedent, except under the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.
      Donny Gene Claunch, proceeding        pro se , seeks a certificate of

appealability so that he can appeal the district court’s denial of Claunch’s 28

U.S.C. § 2254 habeas petition.    See 28 U.S.C. § 2253(c)(1)(A) (providing that an

appeal may not be taken from the denial of a § 2254 habeas petition unless the

petitioner first obtains a certificate of appealability). Because Claunch has not

“made a substantial showing of the denial of a constitutional right,” this court

denies Claunch a certificate of appealability and     dismisses this appeal.   See id.

§ 2253(c)(2) (providing that a certificate of appealability may issue only if

petitioner has made a substantial showing of the denial of a constitutional right).

      Claunch was found guilty by a jury of murder in the first degree on

November 27, 1979, and was sentenced to life imprisonment. Claunch never

challenged his conviction or sentence on direct appeal. In 1988, Claunch filed a

petition for appeal-out-of-time and post-conviction relief (the “first state

petition”). In his first state petition, Claunch alleged eight grounds for relief,

including a claim that his counsel was constitutionally ineffective for failing to

perfect a direct appeal. The state district court denied relief in July of 1988;

Claunch failed to appeal the denial of relief to the Oklahoma Court of Criminal

Appeals (the “OCCA”). Claunch filed a second petition for post-conviction in

Oklahoma state court in 1996 (the “second state petition”). In his second state

petition, Claunch again claimed his counsel was ineffective for failing to perfect


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a direct appeal. He also raised an entirely new claim, contending he was denied

due process when the trial court failed to conduct a post-examination competency

hearing to determine Claunch’s competency to stand trial. The state district court

denied relief on the grounds Claunch had previously raised or could have raised

these issues in his first state petition. On appeal from the denial of relief, the

OCCA concluded the issues raised in the second state petition were procedurally

barred. According to the OCCA, the issues were procedurally barred both

because Claunch failed to raise them on direct appeal and because, to the extent

they were raised in the first state petition, he failed to appeal the denial of that

petition to the OCCA.

      Claunch then filed the instant § 2254 habeas petition in the federal district

court reasserting the ineffective assistance and competency hearing issues. After

Claunch’s petition was referred to a magistrate judge for initial proceedings, the

magistrate judge issued a Report and Recommendation, recommending the

petition be dismissed on grounds of procedural bar. The magistrate judge

concluded, inter alia , that without regard to whether Claunch’s counsel was

ineffective in failing to prefect a direct appeal, Claunch had waived both his

ineffective assistance claim and his competency claim by failing to raise the




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competency claim in, and failing to appeal to the OCCA from, the denial of his

first state petition.   1



        In response to the Report and Recommendation, Claunch filed an objection

to the report and recommendation, challenging the magistrate judge’s conclusion

that Claunch’s trial counsel was not constitutionally ineffective; Claunch’s

objection did not address the competency hearing issue. The district court

overruled Claunch’s objections and adopted the Report and Recommendation. In

so doing, the district court noted that Claunch had waived review of the

magistrate judge’s conclusions regarding the competency hearing by failing to

specifically object. Nevertheless, the district court specifically noted that

Claunch’s competency-hearing claim was subject to procedural bar because it

was procedural rather than substantive in nature. In particular, the district court

noted Claunch did not allege he was actually incompetent at the time of his trial



       In so holding, the magistrate judge concluded as follows:
        1

             Even if [Claunch] could demonstrate attorney error and
      prejudice, which he has not, he cannot successfully blame any
      ineffectiveness of counsel for failing to adequately and timely raise
      his constitutional grounds first at the state level, because proceeding
      pro se, he filed his first application for post-conviction relief in the
      state court, and never raised the competency-hearing issue nor did
      [Claunch] even appeal that first denial. The appeal of the denial of
      the second application was dismissed due to [Claunch’s] personal
      failure to previously raise the issue. It is [Claunch] who is
      personally responsible for any failure to adequately raise his grounds
      in state court.
Report and Recommendation at 7.

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and did not allege any factual basis to raise a threshold doubt about his

competency.

      This court will issue a certificate of appealability “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In Barefoot v. Estelle , 463 U.S. 880 (1983), the Supreme Court

provided content to the term “substantial showing” of the denial of a

constitutional right. According to the Court, a petitioner has made such a

substantial showing if he demonstrates the issues raised are debatable among

jurists of reason, the appellate court could resolve the issues in a different

manner, or the issues are adequate to deserve encouragement to proceed further.

Id. at 893 & n.4.

      Upon de novo review of Claunch’s application for a certificate of

appealability and appellate brief, the magistrate judge’s Report and

Recommendation, the district court’s Order, and the entire record on appeal, this

court concludes the district court’s resolution of the issues raised in Claunch’s

petition on the basis of procedural bar is not deserving of further proceedings for

substantially those reasons set out in the magistrate judge’s Report and

Recommendation dated June 7, 1997, and the district court order dated




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January 22, 1998. Accordingly, Claunch’s application for a certificate of

appealability is DENIED and the appeal is therefore   DISMISSED .

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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