                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                NOV 29 2001
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 TONY MARTIN,

          Petitioner-Appellant,
 v.                                                           No. 01-6211
 GARY GIBSON, Warden,                                 (D.C. No. CIV-00-1631-R)
                                                            (W.D. Okla.)
          Respondent-Appellee.




                                  ORDER AND JUDGMENT*


Before HENRY, BRISCOE 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(G). The case is therefore ordered

submitted without oral argument.

      Petitioner Tony Martin seeks a certificate of appealability to appeal the district

court's denial of his pro se 28 U.S.C. § 2254 habeas petition. We deny his request for a



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
certificate of appealability and dismiss the appeal.

       In 1998, Martin was convicted in state district court of larceny of merchandise

from a retailer after former conviction of two or more felonies. His conviction and

sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals

(OCCA). The state district court denied post-conviction relief, and the OCCA declined

jurisdiction because the petition had not been timely filed, citing OCCA Rule 5.2(C)(2).

Martin then filed an application for state habeas relief in the OCCA, which was denied

because he failed to attach an order of the state district court denying relief, citing OCCA

Rule 10.1(C)(2).

       Martin filed this action on September 21, 2000, alleging (1) the trial court erred in

admitting his involuntary confession into evidence; (2) he received ineffective assistance

by both trial and appellate counsel; (3) the state violated his right to counsel during a

“show-up,” which tainted the in-court identification; (4) the state improperly commented

on his failure to testify; and (5) his sentence was excessive. The district court adopted the

report and recommendation of the magistrate judge and denied relief.

       With regard to Martin's claims that his confession was involuntary and that he

received ineffective assistance of counsel, the district court found those issues had been

raised in state post-conviction and state habeas proceedings and had been procedurally

defaulted on state grounds. On habeas review, we do not address issues that have been

defaulted in state court on an independent and adequate state ground unless petitioner can


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demonstrate cause and prejudice or a fundamental miscarriage of justice. English v.

Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). These claims were defaulted for failure to

comply with OCCA Rules 5.2(C)(2) and 10.1(C)(2). We agree with the district court that

these rules constitute an independent and adequate state procedural ground, and that

Martin has failed to demonstrate cause and prejudice or a fundamental miscarriage of

justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Duvall v. Reynolds, 139

F.3d 768, 797 (10th Cir. 1998).

         With regard to Martin's three remaining claims, we have examined the record and

conclude that the district court did not err in concluding Martin failed to show that the

OCCA's determination of the claims resulted in a decision that was contrary to, or

involved an unreasonable application of, established federal law or an unreasonable

determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).

We agree with the magistrate's recommendation on these issues, as adopted by the district

court.

         Martin has not made a substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2). We DENY a certificate of appealability and DISMISS the

appeal. Martin's request to proceed on appeal in forma pauperis is DENIED. The

mandate shall issue forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge

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