                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 23 2000
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 MICHAEL EUGENE PRICE, SR.,

          Petitioner - Appellant,
 v.                                                     No. 00-5016
                                                  (D.C. No. 98-CV-755-B)
 RON CHAMPION, Warden of Dick                  (Northern District of Oklahoma)
 Connor Correctional Center,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Petitioner-Appellant Michael Eugene Price, appearing pro se, seeks a

certificate of appealability pursuant to 28 U.S.C. § 2253(c) to challenge the

district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The district court dismissed Price’s petition as procedurally

barred. Because we conclude that Price has not made “a substantial showing of



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a certificate

of appealability and dismiss this appeal.

                                            I

        Price is a state inmate serving a sixty-five-year sentence imposed on

October 5, 1995, following a jury verdict of guilty for committing robbery with a

firearm after former conviction of two or more felonies. Against the advice of the

trial court, he appeared pro se at trial. He did not file a timely direct appeal of his

conviction and sentence, but on several occasions from October 1995 to August

1996, he attempted unsuccessfully to obtain a copy of his trial transcripts at no

cost.

        On April 8, 1997, Price filed an application for state post-conviction relief.

The state district court denied the application, finding that he had waived his

claims by failing to perfect a direct appeal. He did not appeal that decision,

instead filing a second application for state post-conviction relief on April 3,

1998. The state district court again denied his application, finding he had waived

his claims. On appeal from the denial of his second application, the Oklahoma

Court of Criminal Appeals dismissed his appeal as untimely.

        On October 1, 1998, Price filed a petition for a writ of habeas corpus in

federal district court pursuant to 28 U.S.C. § 2254 on the ground that he had been

denied a direct appeal through no fault of his own and had been denied a copy of


                                            -2-
the record at no cost for purposes of preparing for his appeal. The district court

denied his petition without an evidentiary hearing, concluding he had procedurally

defaulted his claims. This appeal followed.

                                          II

      We review de novo whether a defendant’s claims are procedurally barred.

See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993). If a state prisoner

has defaulted his federal claims in state court by virtue of an independent and

adequate state procedural rule, federal habeas review of his claims is “barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman

v. Thompson, 501 U.S. 722, 750 (1991). “A state court finding of procedural

default is independent if it is separate and distinct from federal law.” Maes v.

Thomas, 46 F.3d 979, 985 (10th Cir. 1995). A finding of procedural default is an

adequate state ground if it has been applied evenhandedly “in the vast majority of

cases.” Id. at 986 (quotation and citation omitted).

      The district court denied Price’s petition, concluding he had procedurally

defaulted his claims twice:

      first, when he failed to raise his claim that he had been denied a
      direct appeal through no fault of his own, despite having knowledge
      of the facts underlying the claim, in his first post-conviction
      application and then failed to appeal the trial court’s denial of that

                                         -3-
      post-conviction application; and second, when he failed to perfect a
      timely appeal from the trial court’s denial of his second application
      for state post-conviction relief.

(I R. Doc. 17 at 6.) We agree with the district court’s reasoning and its

conclusion that Price has twice procedurally defaulted his claims and that

Oklahoma’s procedural bar rule is “independent” and “adequate.” Coleman, 501

U.S. at 750.

      Therefore, we must determine whether Price has show “cause and

prejudice” or a “fundamental miscarriage of justice” sufficient to overcome the

procedural default. Id. To satisfy the “cause” prong of the standard, Price must

establish that “some objective factor external to the defense” prevented him from

complying with the state court’s procedural rules. McCleskey v. Zant, 499 U.S.

467, 493 (1991) (quotation and citation omitted). The district court concluded

that Price failed to allege cause for his failure to appeal the trial court’s denial of

his first application for post-conviction relief. It reasoned that because of this

failure to appeal, any subsequent request for relief raised in a post-conviction

appeal would be subject to procedural bar by the Oklahoma Court of Criminal

Appeals. The district court also dismissed other conclusory assertions of

limitations on his access to the law library because he failed to relate the alleged

restrictions to his defaults in state court. We find that the district court properly

applied the doctrine of procedural default to foreclose review of Price’s claims.


                                           -4-
He has failed to allege any cause for his first procedural default. On appeal, he

now claims the law library supervisor refused to send his notices of appeal. He

does not specify whether he is referring to his direct appeal or his first application

for post-conviction relief, but even if he was alleging cause for his failure to

appeal his first application, we do not consider the claim because it is raised for

the first time on appeal. See Oyler v. Allenbrand, 23 F.3d 292, 299 n.8 (10th Cir.

1994).

         Furthermore, Price argues for the first time on appeal that his state

procedural default should be excused to prevent a fundamental miscarriage of

justice. However, even if we considered this claim for the first time on appeal,

fundamental miscarriage of justice is an “extremely narrow exception, implicated

only in ‘an extraordinary case, where a constitutional violation has probably

resulted in the conviction of one who is actually innocent.’” Ballinger, 3 F.3d at

1375 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To prevail, Price

must identify evidence that affirmatively demonstrates his innocence. See Schlup

v. Delo, 513 U.S. 298, 327 (1995). Price has done nothing more than present

conclusory statements of his innocence.

                                            III

         We conclude that Price has failed to make a substantial showing of the

denial of a constitutional right. The request for a certificate of appealability is


                                            -5-
DENIED; this appeal is DISMISSED. Price’s motion to proceed in forma

pauperis is GRANTED.

     The mandate shall issue forthwith.

                                    ENTERED FOR THE COURT



                                    Carlos F. Lucero
                                    Circuit Judge




                                      -6-
