                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 MICHAEL TERRENCE OLIVER,

          Petitioner - Appellant,
                                                          No. 98-5257
 v.
                                                    (D.C. No. 97-CV-247-K)
                                                 (Northern District of Oklahoma)
 RITA MAXWELL, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Petitioner Michael Terrance Oliver, pro se, seeks a certificate of

appealability, pursuant to 28 U.S.C. § 2253(c), to appeal the district court’s denial

of his petition for a writ of habeas corpus under § 2254. Because we conclude

that Oliver has not made “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we deny a certificate of appealability and dismiss

this appeal.


      *
        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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Oliver is a state inmate in the custody of the Oklahoma Department of

Corrections, serving two concurrent twenty-year sentences imposed after he

entered a plea, while represented by counsel, of no contest to charges of

Possession of Marijuana; Second Offense After Former Conviction of a Felony;

and Unlawful Delivery of Marijuana After Former Conviction of a Felony. Oliver

did not file a timely direct appeal of these convictions and sentences. He did,

however, file an application for state post-conviction relief, arguing that the trial

court lacked jurisdiction to sentence him because his enhanced sentences were not

properly allowed by statute. The state district court denied Oliver’s application.

The Oklahoma Court of Criminal Appeals affirmed the denial of post-conviction

relief, finding that Oliver had failed to raise his claims on direct appeal and failed

“to articulate sufficient reason or special circumstances explaining his failure” to

do so. R. Doc. 1 at 15, Oliver v. Tulsa County, No. PC 96-1350 (Okla. Crim.

App. Feb. 6, 1997) (Order Affirming Denial of Post-Conviction Relief at 2).

      Oliver then filed a petition for a writ of habeas corpus in federal district

court, pursuant to 28 U.S.C. § 2254. The district court denied Oliver’s

application without an evidentiary hearing, concluding that by failing to seek

timely direct review in Oklahoma state court, he had procedurally defaulted his

claims. The district court found that the Oklahoma Court of Criminal Appeals

had applied the independent and adequate state doctrine of barring claims on post-


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conviction not raised on direct appeal, and that Oliver had not shown that failure

to consider his claims would result in a fundamental miscarriage of justice. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991).

      Oliver does not argue that the Oklahoma procedural bar applied is not

independent of federal law, see Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.

1995), or that it is not adequately and consistently applied in Oklahoma courts,

see id. Rather, he argues that the federal courts should look past the procedural

bar to reach the merits of his claim on the grounds of “actual or factual

innocence.” Appellant’s Br. at 2A.

      If a state prisoner has defaults his federal claims in state court pursuant to

an independent and adequate state procedural rule, federal habeas review of his

claims is foreclosed “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, 501 U.S. at 540. Oliver does not allege cause

and prejudice, but rather apparently invokes the fundamental miscarriage of

justice exception by arguing that a claim of actual innocence justifies looking past

his procedural default. A claim of actual innocence, in the procedural context, is

“not itself a constitutional claim, but instead a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional claim considered


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on the merits.” Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera v.

Collins, 506 U.S. 390, 404 (1993)). In Schlup, the Court considered a procedural

claim of actual innocence in considering the “fundamental miscarriage of justice”

exception to the pre-AEDPA rule on second and successive habeas petitions. See

Schlup, 513 U.S. at 321. It concluded, in the context of a challenge to a capital

sentence, that a petitioner may secure federal review of the merits of a

procedurally barred claim by showing that “a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at

327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

      The Supreme Court in Schlup was faced with a challenge to a capital

sentence. We assume, without deciding, that its actual innocence standard of

review may apply to claims of actual innocence of a conviction under a habitual

offender statute. See United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.

1993) (stating that “a person cannot be actually innocent of a noncapital

sentence”); but see Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994) (stating,

in dicta, that a person is actually innocent of a habitual offender sentence if he is

innocent of a prior conviction). We need not resolve, however, the scope of the

actual innocence doctrine in the context of non-capital habitual offender

sentencing, because we agree with the district court that Oliver has failed even to

raise colorable allegations of factual innocence as to the underlying grounds of


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his sentence enhancements. Oliver’s claims amount to an argument that the trial

court imposed the incorrect (non-capital) sentence under state law. He fails to

provide any concrete support for this argument, and thus does not carry his burden

of showing a fundamental miscarriage of justice. Thus, the district court properly

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

      Therefore, we conclude that Oliver has failed to make a substantial showing

of the denial of a constitutional right. The request for a certificate of

appealability is hereby DENIED; this appeal is DISMISSED. Oliver’s motion to

proceed in forma pauperis is GRANTED.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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