                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 25, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    JAM ES CLIFFOR D STUAR T,

             Petitioner-A ppellant,

    v.                                                    No. 05-7114
                                                    (D.C. No. 02-CV -315-S)
    RON W ARD, W arden,                                   (E.D. Okla.)

             Respondent-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY , B AL DOC K , and M U RPH Y, Circuit Judges.


         James Clifford Stuart, an Oklahoma state prisoner serving a sentence of life

without parole, appeals from a district court order denying habeas relief from his

conviction for first-degree murder. He raises claims of ineffective assistance of

trial, appellate, and post-conviction counsel, as well as unfairness in state

post-conviction proceedings. For substantially the same reasons as the magistrate

judge set forth in her report and recommendation, we affirm.


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. B ACKGROUND

      On December 11, 1997, Stuart shot and killed his brother-in-law, Robert

Burris. The central issue at trial was whether the killing was accidental or

deliberate.

      Robert M idgett, an eyewitness, testified that Stuart and Burris were arguing

inside Burris’ trailer home when Stuart told Burris, “[Y]ou better get your gun

because I’m going to come back and I’m going to shoot you.” R., Tr. Vol. 2 at

423. Stuart then left in a car and returned in a few minutes with a revolver.

According to M idgett, Stuart appeared “raving mad” as he exited the car and fired

three rounds into the ground and the home. Id. at 424. Burris came out, walked

up to Stuart, and was shot. Burris leaned forward on Stuart and then both of them

fell to the ground, where Burris w as shot again. M idgett and Stuart carried Burris

into the home, and Stuart “dialed 911.” Id. at 427; see also id. at Tr. Vol. 3 at

464. Stuart gave the phone to M idgett and left to go tell his w ife that Burris

“need[ed] [her].” Id., Tr. Vol. 4 at 816. Burris died at the scene.

      Curtis W hitekiller, one of Burris’ friends, testified that, later in the

evening, Stuart gave him the revolver and said that Burris wanted it “throw[n] . . .

in the river.” Id., Tr. Vol. 3 at 533. M idgett’s wife testified that Stuart

telephoned her that evening and asked if Burris was dead. W hen she said “Yes,”

he responded, “He deserved it.” Id. at 672. Stuart fled to Illinois, where he was

arrested.

                                          -2-
      Stuart testified that he did not have an argument with Burris; rather, he

maintained that he was arguing with M idgett, when M idgett “pulled a gun and

shot it in the house.” Id., Tr. Vol. 4 at 867. Stuart claimed that he then went

outside to his car, retrieved a revolver, and fired two shots to frighten M idgett.

Stuart further testified that Burris intervened in the dispute and was accidentally

shot while grabbing the revolver. Finally, Stuart denied asking W hitekiller to

dispose of the revolver, stated that he did not call to speak with M idgett’s wife,

and claimed that he fled because M idgett told authorities that he “just killed

[Burris] for no reason at all.” Id. at 877.

      The jury found Stuart guilty, and the court imposed a sentence of life

without the possibility of parole. Stuart appealed to the Oklahoma Court of

Criminal Appeals (OCCA), arguing that (1) the trial court erred in excluding

expert psychological testimony that Stuart suffers from anxiety; (2) there was

insufficient evidence that Stuart deliberately killed Burris; and (3) his sentence

was excessive. The OCCA affirmed.

      Stuart then filed a pro se application for state post-conviction relief,

arguing, among other things, that his trial and appellate attorneys were

ineffective. The court appointed Stuart an attorney, held an evidentiary hearing,

and denied relief in an order filed M ay 31, 2002, that was served on June 12.

Stuart appealed to the O CC A.




                                           -3-
      On July 25, Stuart filed his petition in error and supporting brief in the

OCCA. But because the petition and brief were filed more than thirty days after

the M ay 31 order was filed or served, the OCCA dismissed the appeal as

untimely.

      Next, Stuart filed a pro se § 2254 habeas petition in federal court in

Oklahoma, making a variety of arguments, including that (1) he was denied “a

full and fair” post-conviction evidentiary hearing, Aplt. App. at 27;

(2) Oklahoma’s “procedures for post[-]conviction appeals are not fair,” id.; and

(3) trial and appellate counsel were ineffective. A magistrate judge recommended

denying the petition because attacks on post-conviction fairness are not

cognizable on habeas review and because procedural bar doomed the

ineffective-assistance claims. The magistrate judge also warned Stuart that

“[f]ailure to file . . . written objections to the . . . recommendation[ ] [within ten

days] may result in waiver of appellate review.” Id. at 48-49. Three weeks later,

in the absence of any objections, a district judge adopted the recommendation and

denied Stuart’s habeas petition.

      Stuart retained counsel and appealed. W e issued Stuart a certificate of

appealability on the issues identified in his opening brief: (1) ineffective

assistance of trial counsel in preparing Stuart to testify; (2) ineffective assistance

of trial counsel in failing to request a competency hearing; (3) ineffective

assistance of appellate counsel; and (4) ineffective assistance of post-conviction

                                           -4-
counsel and unfairness in the state post-conviction proceedings. This court also

ordered Stuart’s counsel to provide “specific facts” regarding earlier assertions he

had made about Stuart’s failure to object to the magistrate judge’s

recommendation. Order at 2 (filed Feb. 12, 2007). Counsel did not comply.

      For the reasons expressed below, we conclude that (1) Stuart is

procedurally barred from asserting ineffective assistance of counsel in the

preparation of his trial testimony; (2) the state post-conviction court’s rulings on

competency and counsel’s handling of competency pass scrutiny under the

Antiterrorism and Effective Death Penalty Act (AEDPA); (3) Stuart is

procedurally barred from asserting ineffective assistance of appellate counsel; and

(4) Stuart’s claims of ineffective post-conviction counsel and unfair proceedings

are not cognizable on habeas review . W e also conclude that Stuart’s failure to

timely object to the magistrate judge’s recommendation relegates his claims to

review for plain error, see M orales-Fernandez v. INS, 418 F.3d 1116, 1122

(10th Cir. 2005), which occurs when there is (1) error, (2) that is plain, (3) that

affects substantial rights, and that (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings, United States v. Sinks, 473 F.3d 1315,

1321 (10th Cir. 2007). But because we find no error under our normal standards

or review , we do not proceed to the more exacting second, third, and fourth

prongs of plain-error review .




                                           -5-
                                  II. D ISCUSSION

                          A. Standards of Habeas Review

      Under AEDPA, when the merits of a claim have been adjudicated in state

court, a federal court will grant habeas relief only if the applicant shows that the

state court decision was (1) contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the United States Supreme

Court; or (2) based on an unreasonable determination of the facts in light of the

evidence presented in state court. 28 U.S.C. § 2254(d). In conducting this

deferential inquiry, we presume that the factual findings of the state courts are

correct, and we place the burden of rebutting this presumption by clear and

convincing evidence on the petitioner. Id. § 2254(e)(1).

      W e review de novo whether a petitioner’s claims are procedurally barred.

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

                                  B. Application

              1. Assistance of Trial Counsel in Preparing Testimony

      Stuart argues that his trial counsel provided ineffective assistance “when

they failed to prepare [him] to take the stand.” Aplt. Opening Br. at 10. The

OCCA found this claim jurisdictionally barred, as it was presented in an untimely

appeal. See Okla. Stat. Ann. tit. 22, ch. 18, App. R. 5.2(C)(2) (requiring that a

petition in error and the supporting brief be filed in the OCCA within thirty days

from the filing of the final order). On habeas review, we do “not address issues

                                         -6-
that have been defaulted in state court on an independent and adequate state

procedural ground, unless the petitioner can demonstrate cause and prejudice or a

fundamental miscarriage of justice.” Anderson v. Sirmons, 476 F.3d 1131, 1140

(10th Cir. 2007) (quotation omitted). The OCCA’s declination of jurisdiction

based on Rule 5.2(C)(2) constitutes an independent and adequate state procedural

ground. See Johnson v. Champion, 288 F.3d 1215, 1227 n.3 (10th Cir. 2002).

Thus, our review ends unless Stuart has demonstrated either cause for the default

and prejudice from the alleged violation of federal law, or that failure to consider

the claim will result in a fundamental miscarriage of justice. See Coleman v.

Thom pson, 501 U.S. 722, 750 (1991).

      Stuart contends that his failure to timely appeal to the OCCA was caused

by “unforeseeable facility lockdowns, shakedowns, library closings, and

equipment failure.” Aplt. Opening Br. at 21. The magistrate judge rejected

Stuart’s assertion of cause, simply stating that he had adequate time to prepare the

one-page petition in error and the six-page accompanying brief. W e do not

believe that the “cause” issue can ordinarily be decided solely on the basis of a

page count in relation to appeal time. But even if we were to find “cause” for

Stuart’s procedural default, he has not demonstrated actual prejudice.

      “[A] petitioner must demonstrate actual prejudice resulting from the alleged

constitutional violation.” Johnson, 288 F.3d at 1227 (quotation omitted). Stuart

has not suggested how his trial attorneys’ purported failure to prepare him to

                                         -7-
testify prejudiced his defense. Indeed, Stuart does not claim that he provided

damaging testimony or that he omitted favorable testimony. And our review of

the record indicates that he testified on direct and cross-examination consistently

with his theory of the case, which was that he accidentally shot Burris.

      Nor has Stuart demonstrated that a miscarriage of justice would occur if

this ineffective-assistance claim is procedurally barred. “To meet this test, a

criminal defendant must make a colorable showing of factual innocence,”

Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000), such “that no reasonable

juror would have found the defendant guilty,” Ellis v. Hargett, 302 F.3d 1182,

1186 n.1 (10th Cir. 2002) (quotation omitted). Stuart does not direct our attention

to any evidence of his innocence. In his reply brief to the federal district court,

Stuart asserted innocence based on his belief that M idget testified falsely. But

that is not an “affirmative[ ] demonstrat[ion]” of innocence. Phillips v. Ferguson,

182 F.3d 769, 774 (10th Cir. 1999). “A criminal defendant is required to provide

evidence that does more than simply undermine the finding of guilt against him or

her.” Id. (quotation omitted). After carefully reviewing the record, we conclude

that Stuart has failed to come forward with evidence that he is actually innocent

of first-degree murder.

      Stuart is, therefore, procedurally barred from asserting ineffective

assistance in the preparation of his trial testimony.




                                          -8-
            2. Assistance of Trial Counsel in Challenging Competency

      Stuart next argues “that during two periods in his trial he experienced

hypoglycemic episodes” which rendered him incompetent, Aplt. Opening Br. at

14, and that trial counsel was ineffective for not seeking a competency hearing

“on learning that [he] had experienced a hypoglycemic event,” id. at 15. W e face

a variety of potential restrictions in reaching the merits of this argument. First,

competency issues were not raised in Stuart’s federal habeas petition, and

therefore, those issues would ordinarily be deemed waived on appeal. See

Johnson, 288 F.3d at 1229 (stating “that a federal appellate court does not

consider an issue not passed upon below” unless “the proper resolution is beyond

any doubt” or “injustice might otherwise result” (quotations omitted)). Second,

while Stuart claimed in his state post-conviction proceedings that his attorneys

should have notified the trial judge that there was a competency issue, the issue is

subject to procedural bar, as it was rejected by the O CCA as part of Stuart’s

untimely post-conviction appeal. See supra Part II.B.1. To the extent, however,

that M r. Stuart is attempting to advance a competency claim based on substantive

due process, neither w aiver nor procedural bar w ould apply. See Barnett v.

Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999); Castro v. Ward, 138 F.3d 810,

817 n.3 (10th Cir. 1998). Third, because the state district court, when resolving

Stuart’s post-conviction application, addressed Stuart’s competency and his

counsel’s assistance, any review of the merits would be deferential under

                                          -9-
AEDPA . Given this morass of restrictions, we conclude that the most efficient

course is to proceed to the merits, overlooking any waiver or procedural bar. See

Spears v. M ullin, 343 F.3d 1215, 1256 (10th Cir. 2003). In doing so, we first

review Stuart’s overall claim that he was incompetent for two periods at trial, and

then we turn to his trial counsel’s failure to request a competency hearing.

      Competence to stand trial requires that the defendant have (1) “sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding,” and (2) “a rational as well as factual understanding of the

proceedings against him.” C ooper v. Oklahoma, 517 U.S. 348, 354 (1996)

(quotations omitted). “[E]vidence of a defendant’s irrational behavior, his

demeanor at trial, and any prior medical opinion on competence to stand trial are

all relevant in determining whether further inquiry [about the defendant’s

competence] is required.” Drope v. Missouri, 420 U.S. 162, 180 (1975).

      The state post-conviction judge— who was the same judge that presided

over Stuart’s trial— found Stuart’s competency claims completely refuted by the

record. Specifically, during the two periods that Stuart was allegedly

experiencing hypoglycemic episodes, the record reveals that he had clear and

cogent discussions with the trial judge regarding trial events and how he wished

to proceed. M oreover, shortly after the purported second episode, Stuart took the

witness stand, offering clear testimony and providing “steady and consistent

protestations” on cross-examination. Aplee. App. at 125. And after completing

                                        -10-
his testimony, Stuart participated in the jury instruction conference, again

displaying an understanding of the proceedings through colloquy with the court.

Based on this record, the court ruled that Stuart had “a clear, unequivocal and

competent understanding of the proceedings at the times [he claims] that he was

suffering from diabetic shock.” Id. at 127. W e agree, and conclude under

AEDPA that this ruling is not contrary to or an unreasonable application of

federal law, or based on an unreasonable factual determination.

      Additionally, with no record indication of incompetency, trial counsel

cannot be held ineffective for not requesting a competency hearing. See

Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that an ineffective

assistance claim requires deficient performance that prejudices the defense); cf.

United States v. Herrera, 481 F.3d 1266, ___, 2007 W L 987409, at *5 (10th Cir.

2007) (stating that a defendant is entitled to a hearing when there is a bona fide

doubt about his competency). The state post-conviction court applied Strickland

and found no deficits in the performance of Stuart’s defense attorneys. W e

discern no AEDPA error. 1




1
       Stuart has submitted a letter from a medical doctor who has never examined
or treated him but believes that hypoglycemia would have caused Stuart to suffer
“retrograde amnesia” at trial and would have interfered with his ability to
understand and process spoken words. Aplt. App. at 4. Even if we w ere
som ehow able to consider this letter, submitted for the first time on appeal, we
could not conclude under A EDPA that the state post-conviction court’s
application of federal competency law was unreasonable.

                                         -11-
                         3. Assistance of Appellate Counsel

      Stuart next claims that his counsel on direct appeal was ineffective for not

“rais[ing] the issues of ineffective assistance of trial counsel and . . . competency

to stand trial.” Aplt. Opening Br. at 17. This claim is subject to procedural bar

because it was rejected by the OCCA as part of Stuart’s untimely post-conviction

appeal. See supra Part II.B.1.

      M oreover, the procedural bar is unavoidable. Even if we assume “cause”

as we did above, Stuart cannot demonstrate “prejudice.” W hile his counsel on

direct appeal neglected to raise the issues of competency and ineffective

assistance, that did not prevent Stuart from having those issues decided on the

merits by the state district court on post-conviction. And even if those issues had

been raised on direct appeal, we believe they would have met the same fate as

they did on post-conviction.

                          4. Post-Conviction Proceedings

      Lastly, Stuart contends that the state post-conviction proceedings violated

due process because (1) he received ineffective assistance during the evidentiary

hearing; and (2) the OCCA’s rules do not require a hearing before that court

dismisses an untimely post-conviction appeal. Assuming that both of these points

were raised in Stuart’s federal habeas petition, and therefore, are not waived on

appeal, see Johnson, 288 F.3d at 1229, they are, nevertheless, meritless because

such challenges are not cognizable on habeas review, see Coleman, 501 U.S. at

                                         -12-
752 (stating that a habeas “petitioner cannot claim constitutionally ineffective

assistance of counsel in [state post-conviction proceedings]”); United States v.

Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (observing that “due process

challenges to post-conviction procedures fail to state constitutional claims

cognizable in a federal habeas proceeding”).

                                 III. C ONCLUSION

      A ccordingly, the judgment of the district court is AFFIRMED.

                                                    Entered for the Court


                                                    Robert H. Henry
                                                    Circuit Judge




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