                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JAN 28 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 BRUCE WAYNE MARTIN,

          Petitioner-Appellant,

 v.                                                            No. 98-5113
                                                               (N.D. Okla.)
 LEROY YOUNG; ATTORNEY GENERAL                           (D.Ct. No. 96-CV-381-E)
 OF THE STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Bruce Wayne Martin, an Oklahoma state prisoner appearing pro

se, seeks a certificate of appealability under 28 U.S.C. § 2253 in order to

challenge the district court’s dismissal of his habeas petition filed pursuant to 28

U.S.C. § 2254. We deny Mr. Martin’s request for a certificate of appealability

and dismiss his appeal.



      A jury convicted Mr. Martin of “larceny of an automobile after former

conviction of two or more felonies.” He received a sentence of thirty-eight years

imprisonment. Mr. Martin perfected a timely direct appeal to the Oklahoma Court

of Criminal Appeals, and that court affirmed the judgment and sentence. Mr.

Martin then unsuccessfully sought post-conviction relief in Oklahoma state

courts.



      Thereafter, Mr. Martin filed a petition for a writ of habeas corpus under 28

U.S.C. § 2254 in the federal district court raising essentially three claims: (1) the

trial court used erroneous and improper jury instructions, which denied his right

to an impartial jury, a fair trial, due process, equal protection, and the right to

remain silent; (2) his conviction resulted from use of evidence obtained through

an unlawful arrest; and (3) the court violated his privilege against self-

incrimination by admitting into evidence his statements to the police prior to


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receiving a Miranda warning. Mr. Martin did not raise the first two issues in his

direct appeal to the Oklahoma Court of Criminal Appeals. He claims he failed to

raise those issues because of his counsel’s ineffective assistance. Alternatively,

he asserts the district court’s failure to consider those issues resulted in a

fundamental miscarriage of justice.



      The background facts of Mr. Martin’s case are set out and fully addressed

by the district court in a thorough thirteen-page Order filed May 7, 1998. After

careful analysis, the district court found Mr. Martin’s first two claims

procedurally barred because he failed to raise them on direct appeal, or show

“cause” why they could not be raised on direct appeal. The district court

reviewed Mr. Martin’s multiple claims of ineffective assistance of counsel, and

determined they each failed to satisfy either the performance or prejudice prong

of Strickland v. Washington, 466 U.S. 668, 687 & 694 (1984). As a result, the

court concluded Mr. Martin’s claims of ineffective assistance of counsel did not

satisfy the “cause” requirement to show why he failed to raise the first two issues

on direct appeal. The district court also found Mr. Martin never raised a claim of

actual innocence. Thus, the district court determined his assertion of fundamental

miscarriage of justice must also fail.




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       Lastly, the district court considered Mr. Martin’s claim that the trial court

improperly admitted his statements to the police prior to issuance of a Miranda

warning. After reviewing the record, the district court concluded the “state

court’s resolution of this issue did not involve an unreasonable application of

Federal law nor was it based on an unreasonable determination of the facts,” and

found “nothing constitutionally infirm in the trial court’s decision to admit this

evidence.” The district court denied Mr. Martin’s request for a certificate of

appealability.



       On appeal, Mr. Martin raises essentially the same arguments raised in his

petition before the district court. We have thoroughly reviewed Mr. Martin’s

application for a certificate of appealability, his brief and other pleadings, the

district court’s order, and the entire record on appeal. For substantially the same

reasons set forth by the district court in its Order filed May 7, 1998, we conclude

Mr. Martin fails to make a substantial showing of the denial of a constitutional

right as required by 28 U.S.C. § 2253(c)(2). 1 We adopt the district court’s



       1
          A defendant may appeal the denial of a habeas corpus petition only if “a circuit
justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). “A
certificate of appealability may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). See United
States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).


                                            -4-
reasoning in its Order and attach it hereto.



      Accordingly, we deny Mr. Martin’s request for a certificate of appealability

and DISMISS the appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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Attachment not available electronically.
