                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 ROGER CLARK,

              Petitioner-Appellant,                     No. 08-7056
 v.                                             Eastern District of Oklahoma
 GREG PROVINCE, Warden,                      (D.C. No. CIV-06-165-RAW-KEW)

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Roger Clark, a state prisoner in Oklahoma, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Clark has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                      Background

      On July 2, 2003, a task force of Oklahoma police executed a search warrant

on Mr. Clark’s home. After announcing themselves and waiting about twenty-


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
five seconds, the officers made a forced entry, secured the master bedroom, and

then, after opening the adjoining door to the master bathroom, found Mr. Clark

with his hands in the toilet. Inside the toilet was a clear plastic bag filled with a

liquid, and also a white rag wrapped around a rock. Lab tests later confirmed that

this rock was made of methamphetamine. A search of the apartment also

uncovered digital scales, clear plastic baggies, a discolored brass fitting, a police

radio and scanner, more methamphetamine in a nightstand drawer and in a shoe

box at the side of the bed, and over $10,000 cash. After the police searched the

house, Mr. Clark’s wife, Sharon Clark, led them to a second location in a wooded

area that contained empty cans of camp fuel, battery casings with the insides

stripped out, plastic gas cans, muriatic acid, and other items used to manufacture

methamphetamine.

      The state charged Mr. Clark with Manufacture of Controlled Dangerous

Substance (Methamphetamine) in violation of 63 Okla. Stat. § 2-401; Trafficking

in Illegal Drugs (Methamphetamine) in violation of 63 Okla. Stat. § 2-415; and

Unlawful Use of a Police Radio in violation of 21 Okla. Stat. § 1214. A jury trial

was held on October 6–7, 2003, after which Mr. Clark was found guilty of all

three charges. After retaining different counsel, Mr. Clark filed a motion for a

new trial on November 13, 2003, which the trial court granted. Mr. Clark’s

second trial was held on January 12–14, 2004, and he was again found guilty on

all three counts. The court sentenced him to fifty years and a $100,000 fine on

                                           -2-
count one; life and a $200,000 fine on count two, and three years and a $5,000

fine on count three.

      With the assistance of court-appointed counsel, Mr. Clark appealed his

conviction to the Oklahoma Court of Criminal Appeals, which affirmed. He then

filed an application for post-conviction relief. That application was denied on

August 10, 2005. He appealed that denial to the Oklahoma Court of Criminal

Appeals, which affirmed the denial of post-conviction relief on October 27, 2005.

After pursuing these state remedies, Mr. Clark, pro se, filed a petition for writ of

habeas corpus with the United States District Court for the Eastern District of

Oklahoma. A magistrate judge issued a Report and Recommendation

recommending that Mr. Clark’s petition be denied. Mr. Clark filed timely

objections to the report—at that point with the assistance of counsel—but the

district court adopted the Report and Recommendation and denied Mr. Clark’s

petition on April 29, 2008.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

                                          -3-
manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted). When a habeas petition is denied on procedural

grounds, the petitioner must demonstrate “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Id. (emphasis added). Mr. Clark contends

that the trial court violated his constitutional rights in two ways: by failing to

suppress his confession and by the cumulative effect of trial irregularities.

      A. Failure to Suppress Confession

      Mr. Clark argues that the trial court violated his constitutional rights by

allowing the state to admit an involuntary confession into evidence. See Jackson

v. Denno, 378 U.S. 368, 376 (1964) (“a defendant in a criminal case is deprived

of due process of law if his conviction is founded, in whole or in part, upon an

involuntary confession”). Although he was read his Miranda warnings, Mr. Clark

contends that his confession could not be voluntary because he is mentally

retarded, because he was coerced by implied threats against his wife, and because

he was improperly promised that his wife would not be charged if he gave a

statement. Nowhere in his brief, however, does Mr. Clark challenge or even

acknowledge the actual ground for the district court’s rejection of this claim:

procedural default.

                                          -4-
       According to the Report and Recommendation adopted by the district court,

Mr. Clark failed to raise his present claim on direct appeal to the OCCA. “The

argument on appeal was that petitioner’s confession should have been suppressed

because of his mental retardation” and that “any implied threat occurred after

Miranda warnings were administered to petitioner,” whereas his current habeas

claim “is that the alleged threat was made prior to the Miranda warnings, placing

the claim in a different legal posture.” Rep. & Rec. 12. Mr. Clark had admitted

in his habeas petition that he did not raise this voluntariness claim on direct

appeal, and the court found that he had failed to demonstrate cause for that

failure. Id. at 13.

       Because the district court denied Mr. Clark’s habeas petition on procedural

grounds, he must show not only that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right,”

but also that “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack, 529 U.S. at 484. Mr. Clark has

offered no reason for us to doubt the district court’s finding of procedural default,

and “we are not required to manufacture a party’s argument on appeal when it has

failed in its burden to draw our attention to the error below.” Nat’l. Commodity

& Barter Ass’n v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989). Federal Rule of

Appellate Procedure 28(a)(9)(A) requires that the appellant’s opening brief

contain “appellant’s contentions and the reasons for them, with citations to the

                                          -5-
authorities and parts of the record on which the appellant relies.” An appellant’s

failure to raise the issue in the opening brief generally waives that issue on

appeal. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1093); State

Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

      It might be that Mr. Clark now abandons the argument he made before the

district court and instead renews the argument he made on direct appeal. This

would explain why he does not challenge the determination that the argument

made in his habeas petition was procedurally defaulted, as well as the fact that his

current brief repeats, word for word, the argument he made on direct appeal. If

that is the case, then Mr. Clark’s failure to raise this issue before the district court

waives the argument on appeal. “The well-settled law of this circuit is that issues

not raised in district court may not be raised for the first time on appeal.” United

States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004); see also United States v.

Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005). To the extent that Mr. Clark is

making a new argument in this appeal, we will not review it.

      We deny Mr. Clark’s request for COA on the issue of his confession

because he has given no reason to doubt the district court’s determination that the

claim raised in his habeas petition is procedurally defaulted.

      B. Cumulative Error

      Mr. Clark also requests a COA on whether the cumulative effect of trial

errors that might individually have been found harmless collectively denied him

                                           -6-
his right to a fair trial. He never, however, draws our attention to any specific

error. The closest he comes to identifying any individual error is to say that “his

fundamental right to a fair trial was denied through the repeated improper

admission of evidence in this case.” Aplt. 15. Just what evidence Mr. Clark

believes was improperly admitted and why such admission might be improper

remains a mystery. This deficient briefing makes it impossible for us to address

the issue. Moreover, Mr. Clark did not raise his cumulative error claim in his

petition before the district court. Mr. Clark has therefore failed to make a

substantial showing of the denial of a constitutional right as to this issue, and we

deny his request for COA.

                                     Conclusion

      Accordingly, we DENY Mr. Clark’s request for a COA and DISMISS this

appeal.

                                                     Entered for the Court,


                                                     Michael W. McConnell
                                                     Circuit Judge




                                          -7-
