                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      October 10, 2013

                                                                        Elisabeth A. Shumaker
                                   TENTH CIRCUIT                            Clerk of Court



 AMINU ZEGARIAH TIJUAN INUWA,

        Petitioner - Appellant,

 v.                                                          No. 13-5067
                                                 (D.C. No. 4:10-CV-00430-JHP-PJC)
 JUSTIN JONES, Director,                                  (N.D. Oklahoma)

        Respondent - Appellee.



              ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN and GORSUCH, Circuit Judges.


       Aminu Inuwa filed an application for relief under 24 U.S.C. § 2254 in the United

States District Court for the Northern District of Oklahoma on October 21, 2010. He

raised 27 claims, all of which were denied. He now requests a certificate of appealability

(COA) from this court so that he can pursue an appeal. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal denial of habeas application). We deny a COA and dismiss

the appeal.

I.     BACKGROUND

       Mr. Inuwa pleaded nolo contendere in Oklahoma state court to charges of robbery
with a firearm and possession of a firearm by a convicted felon. His motion to withdraw

his pleas was denied after a hearing. He appealed the denial to the Oklahoma Court of

Criminal Appeals (OCCA), and was granted a new hearing, but with the same result. The

OCCA denied a second appeal, after which Mr. Inuwa filed a pro se application for

postconviction relief in the state district court. The court denied his petition and the

OCCA dismissed his appeal as untimely. Mr. Inuwa then filed his § 2254 application in

federal district court.

       The district court addressed 27 claims raised by Mr. Inuwa. Four claims were

dismissed as moot because they concerned the conduct of the first hearing on

Mr. Inuwa’s application to withdraw his plea of nolo contendere.1 Nineteen claims were

procedurally barred.2 They were raised in Mr. Inuwa’s state petition for postconviction

relief, but the state trial court rejected them on the merits and the OCCA dismissed his

appeal as untimely.

       1
          The claims dismissed as moot were: (1) “Because defense counsel notified court
of a conflict of interest the trial court erred by not appointing new counsel to represent
petitioner at the hearing on his request to withdraw pleas,” R., Vol. I at 60, 62; (2)
“Because the trial court granted petitioner’s request to withdraw his pleas in open court,
the trial court deprived the petitioner of his due process rights when it rescinded its
decision,” id. at 61; (3) “Petitioner was deprived of his right to effective assistance of
counsel at hearing on the motion to withdraw pleas,” id. at 64; and (4) “Because the trial
court initially granted petitioners [sic] request to withdraw pleas in open court, the trial
court deprived the petitioner of his due process rights when it later rescinded its
decision,” id. at 68.
       2
         Mr. Inuwa did not describe these 19 claims individually, but rather cross-
referenced his Oklahoma state-court application for postconviction relief. All the claims
alleged ineffective assistance of appellate counsel for “failure to raise errors which
affected outcome of trial court process.” Aplt. Br. at 5.
                                              2
       That left only four claims to be addressed on the merits. First, Mr. Inuwa claimed

that his nolo contendere pleas were not voluntary because he knew that his attorney was

not prepared to go to trial. But the district court found that the record supported the

OCCA’s conclusion that the pleas were knowing and voluntary. Second, he claimed that

the prohibition of double jeopardy precluded his being convicted of both offenses. But

the court ruled that the OCCA properly decided as a matter of state law that the

convictions were for distinct offenses. Third, Mr. Inuwa claimed that he must be allowed

to withdraw his pleas because there was no factual basis to support them. But the court

rejected this claim because the OCCA’s finding of a sufficient factual basis was a matter

of state law and did not unreasonably apply federal law. Finally, the court considered

Mr. Inuwa’s claim that he received ineffective assistance of counsel because his attorney

filed a motion to withdraw pleas which did not comply with the rules of the Oklahoma

court. The court dismissed the claim, agreeing with the OCCA that Mr. Inuwa was

unable to demonstrate prejudice because he had been given two hearings at which he

could explain why he sought to withdraw his pleas without any limitations arising from

the motion’s failure to comply with the rule.

       Mr. Inuwa’s brief is almost impossible to navigate. As best we can understand,

however, he appears to be making the following claims in his request for a COA from

this court: (1) at his first hearing to withdraw his pleas, the Oklahoma district court was

biased because it relied only on selective portions of the record; (2) at the same hearing,

the Oklahoma district court erred when it did not appoint new defense counsel after being
                                                3
notified of a conflict of interest; (3) the Oklahoma district court granted the withdrawal of

his pleas during that hearing, but then improperly changed its decision; (4) his appellate

counsel was ineffective in various respects, including not properly objecting to various

constitutional violations regarding his plea and his hearings, and never raising the issue of

his innocence; (5) he has cause to be excused from missing his filing deadline for

postconviction relief in the OCCA because of interference by prison officials; (6) he is

actually innocent; (7) there is no factual basis to support his pleas; (8) he received

ineffective assistance of counsel when his attorney did not list the legal grounds for his

motion to withdraw pleas; (9) his pleas were coerced because he knew that his attorney

had failed to prepare for trial; (10) the district court erred when it did not consider the

totality of the circumstances in evaluating his claims of ineffective assistance of counsel;

(11) his pleas were flawed because he was not informed of the elements of the crimes

charged; and (12) the use of an 18-year-old out-of-state conviction to enhance his

punishment denied him due process.

II.    DISCUSSION

       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). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different 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). In other
                                               4
words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. If the application was denied on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show “that

jurists of reason would find it debatable . . . whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

       In order to obtain federal habeas relief, a state prisoner must “exhaust[ ] the

remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(A). “The exhaustion

requirement is satisfied if the issues have been properly presented to the highest state

court, either by direct review of the conviction or in a postconviction attack.” Brown v.

Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (internal quotation marks omitted). If an

applicant fails to exhaust state remedies and state courts “would now find the claims

procedurally barred[,] the claims are considered exhausted and procedurally defaulted for

purposes of federal habeas relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir.

2000) (internal quotation marks omitted). An applicant can overcome procedural default

by showing cause and prejudice. See Maples v. Thomas, 132 S. Ct. 912, 922 (2012).

“Cause for a procedural default exists where something external to the petitioner,

something that cannot fairly be attributed to him, impeded his efforts to comply with the
                                               5
State’s procedural rule.” Id. (brackets and internal quotation marks omitted). Procedural

default can also be overcome if there has been a fundamental miscarriage of justice—that

is, if the applicant is actually innocent of the crime of conviction. See Black v. Workman,

682 F.3d 880, 915 (10th Cir. 2012) (“[T]o demonstrate a fundamental miscarriage of

justice, a defendant must make a showing of factual innocence . . . .”).

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that the state-court 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). Therefore, for those of Mr. Inuwa’s

claims that the state court adjudicated on the merits, “AEDPA’s deferential treatment of

state court decisions must be incorporated into our consideration of [his] request for [a]

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

       We decline to review Mr. Inuwa’s first, second, and third claims—which

challenge the conduct of the first hearing on his motion to withdraw his pleas—because,

as the district court explained below, they became moot when the OCCA granted him a

second hearing on the motion.

       The fourth claim—ineffective assistance of appellate counsel—was properly held

by the district court to be procedurally barred. Mr. Inuwa attempts to overcome the
                                              6
procedural bar with his fifth and sixth claims—that his postconviction appeal to the

OCCA was impeded by prison officials and that he is actually innocent. But the district

court determined that he did not have cause for his procedural default because the reason

for the untimely filing was his own failure to file a timely pauper’s affidavit, and

Mr. Inuwa points to no evidence in the record that prison officials unreasonably

obstructed his ability to obtain a pauper’s affidavit. Further, he cannot show that there

has been a fundamental miscarriage of justice because he offers no new evidence of his

innocence. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013) (“The miscarriage of

justice exception, we underscore, applies to a severely confined category: cases in which

new evidence shows it is more likely than not that no reasonable juror would have

convicted the petitioner.” (brackets and internal quotation marks omitted)). Thus,

Mr. Inuwa has not shown that jurists of reason would find the district court’s procedural

ruling debatable. See Slack, 529 U.S. at 484.

       The seventh, eighth, and ninth claims were rejected by the district court on the

merits. Mr. Inuwa cannot show that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id. Nor is there any merit

to Mr. Inuwa’s tenth claim—that the district court applied the wrong standard when

evaluating his ineffective-assistance-of-counsel claims.

       Mr. Inuwa’s eleventh and twelfth claims, insofar as they are meant to be distinct

from the claims already discussed, were not raised below. We decline to address them

for that reason. See Grubbs v. Hannigan, 982 F.2d 1483, 1484 n.1 (10th Cir. 1993).
                                              7
III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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