                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 7 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


GLENN DAVID McGUIRE,

          Petitioner-Appellant,
                                                         No. 00-5188
v.                                                (N. District of Oklahoma)
                                                   (D.C. No. 97-CV-716-B)
H. N. “SONNY” SCOTT,

          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.

      This case is before the court on Glenn David McGuire’s    pro se request for

a certificate of appealability (“COA”). McGuire seeks a COA so he can appeal


      *
       This order and judgment is not binding precedent, except under the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 district court’s denial of his 28 U.S.C. § 2254 petition.   See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254

petition unless the petitioner first obtains a COA).

       After a jury trial, McGuire was convicted of two counts of lewd

molestation, after two or more felony convictions. He was sentenced to two,

100-year terms of imprisonment, to run concurrently. The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed McGuire’s convictions and sentences.

McGuire then sought post-conviction relief in Oklahoma state court, raising three

issues that he had not raised in his direct appeal. McGuire asserted that he had

failed to raise these issues because his appellate counsel was constitutionally

ineffective.

       The state district court denied post-conviction relief and McGuire sought

review with the OCCA. The OCCA dismissed McGuire’s appeal as untimely but

McGuire then filed a second application for post-conviction relief requesting an

appeal out of time. Although the state district court eventually recommended that

McGuire be allowed to file a petition for a post-conviction appeal out of time,

McGuire failed to file such a petition with the OCCA.

       While McGuire’s application requesting a post-conviction appeal out of

time was pending, he filed the instant § 2254 petition with the United States

District Court for the Northern District of Oklahoma. In his habeas petition,


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McGuire raised the three claims he originally raised in his application for state

post-conviction relief. Respondent filed a motion to dismiss McGuire’s petition,

arguing that McGuire had failed to exhaust his state remedies. The district court

concluded it would be futile to require McGuire to present his claims to the

OCCA because the OCCA consistently applies a procedural bar to claims that

have been procedurally defaulted. Consequently, the court denied Respondent’s

motion to dismiss. The court, however, ordered McGuire to show cause and

prejudice or a fundamental miscarriage of justice to excuse his procedural default

as to the claims raised in the habeas petition.

       After reviewing McGuire’s submissions, the district court concluded that

all three of his claims were subject to the imposition of a procedural bar. The

court further concluded that McGuire had failed to show cause for his procedural

default. Finally, the court concluded that McGuire had made no claim of actual

innocence and, thus, had failed to show a fundamental miscarriage of justice.     See

Herrera v. Collins , 506 U.S. 390, 403-04 (1993).

       McGuire is not entitled to a COA unless he can make a “substantial

showing of the denial of a constitutional right.”   Id. § 2253(c)(2). McGuire may

make this showing by demonstrating that the issues raised are debatable among

jurists, a court could resolve the issues differently, or that the questions presented

deserve further proceedings.     See Slack v. McDaniel , 529 U.S. 473, 483-84


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(2000). This court has conducted a comprehensive        de novo review of McGuire’s

request for a COA and accompanying brief, the district court’s order, and the

entire record on appeal. After that we review, we conclude that the district court

correctly resolved McGuire’s claims and that it is unnecessary for this court to

expound on the district court’s analysis. Accordingly, this court   denies

McGuire’s request for a COA for substantially those reasons set forth in the

district court's order dated August 31, 2000 and filed September 1, 2000, and

dismisses this appeal.

                                         ENTERED FOR THE COURT:



                                         Michael R. Murphy
                                         Circuit Judge




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