                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 31, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 DEBORAH FRANKS,

       Petitioner - Appellant,
                                                        No. 10-6169
 v.                                              (D.C. No. 09-CV-00943-R)
                                                        (W.D. Okla.)
 MILLICENT NEWTON-EMBRY,
 Warden,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, EBEL, and LUCERO, Circuit Judges.


      Deborah Franks, an Oklahoma state inmate appearing pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of her

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A COA is

jurisdictional and may issue only “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because

this showing is lacking, we deny a COA and dismiss the appeal.

      Ms. Franks was convicted of the first-degree murder of her husband, Randy

Franks, and conspiracy to commit murder. During the trial Ms. Franks’s co-

defendant, Joseph Scholz, testified that Ms. Franks conspired with Mr. Scholz to
kill Mr. Franks. 1 R. 428. Upon the jury’s recommendation, she was sentenced

to consecutive prison terms of life and ten years. Id. 427. On direct appeal, the

Oklahoma Court of Criminal Appeals (OCCA) affirmed her conviction and

sentence. Id. 204.

      Ms. Franks then sought post-conviction relief in state court. Id. 207.

Included in her application was an affidavit of Mr. Scholz recanting his trial

testimony. The trial court denied Ms. Franks’s application. Id. 322. On appeal,

the OCCA remanded for an evidentiary hearing concerning the veracity and

materiality of the change in testimony. Id. 393. On remand, Mr. Scholz (upon

advice of counsel) did not testify, and the state district court found the veracity of

the allegations in the affidavit lacking. Id. 397. It also determined that the

allegations would have been known and should have been previously raised. Id.

The OCCA affirmed. Id. 432. Ms. Franks then filed a second post-conviction

application in state court, which she voluntarily dismissed prior to filing her

federal habeas petition pursuant to 28 U.S.C. § 2254. The magistrate judge

recommended Ms. Franks’s federal petition be denied. The district court

considered in turn Ms. Franks’s objections and adopted the magistrate judge’s

report and recommendation. Franks v. Newton-Embry, No. CIV-09-943, 2010

WL 2632022 (W.D. Okla. June 28, 2010).

      A COA requires an applicant to demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

                                          -2-
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 and citation omitted). “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.

      On appeal, Ms. Franks argues that her counsel was ineffective based upon

incorrect jury instructions and an inadequate investigation. Aplt. Br. 3. She also

argues that prosecutorial misconduct deprived her of a fair trial. Id. We consider

these arguments in turn and assume without deciding the timeliness of Ms.

Franks’s petition.

      Ms. Franks first argues that counsel failed to object to several incorrect

jury instructions and that the district court’s decision to apply anticipatory

procedural bar to this claim was error. As noted by the district court, this claim

was never raised before the Oklahoma courts (either on direct appeal or on post-

conviction) and is unexhausted. Franks, 2010 WL 2632022, at *1. The district

court also determined that Ms. Franks could not show cause or prejudice or a

fundamental miscarriage of justice. Id. at *3.

      Ms. Franks argues that this obvious procedural bar should be excused

because she had the same counsel on direct appeal and at trial. See Welch v.

                                          -3-
Workman, 607 F.3d 674, 704 (10th Cir. 2010) (“The Oklahoma requirement that a

claim of ineffective assistance of trial counsel be raised on direct appeal is an

adequate ground for procedural default if (1) the defendant’s counsel on direct

appeal is different from trial counsel and (2) the claims can be resolved on the

trial record alone.”); English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998).

Even assuming that her jury instruction claims could not be resolved on the trial

record alone (excusing the procedural bar on direct appeal), these jury instruction

claims are procedurally barred because they were not raised in the first post-

conviction application. Okla. Stat. tit. 22, § 1086; Moore v. Reynolds, 153 F.3d

1086, 1097 (10th Cir. 1998). Although Ms. Franks argues that presenting these

claims would have been futile, our precedent is clear that such ineffectiveness

claims must be presented to the OCCA in the first post-conviction application

before presenting them in federal court. Cargle v. Mullin, 317 F.3d 1196, 1212

n.15 (10th Cir. 2003). The district court’s resolution of this claim is not

reasonably debatable.

      Ms. Franks also argues that counsel was ineffective for failing to

investigate by not interviewing Mr. Scholz prior to trial. She suggests that this

prejudiced her defense because Mr. Scholz later recanted his testimony. The

magistrate judge rejected this claim on the basis that Ms. Franks could not

demonstrate prejudice, i.e. “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

                                         -4-
Strickland v. Washington, 466 U.S. 668, 694 (1984). We note that the OCCA

reached a similar conclusion on post-conviction, albeit in the context of rejecting

Ms. Franks’s claim that her counsel was ineffective due to a conflict of interest.

1 R. 431 (“Petitioner has not established [that] her trial and appellate counsel was

ineffective in handling the co-defendant, or that based on the results of the

evidentiary hearing the outcome of her trial and appeal would have been

different.”). The OCCA also rejected the recantation as unsupported by any

credible evidence. Id. (“[N]o evidence was presented that supported the affidavit

of the co-defendant.”). Whether on the merits or a result of deference paid to

state court resolution of claims and findings of fact, 28 U.S.C. § 2254(d) & (e),

this claim is not reasonably debatable.

      Nor is Ms. Franks’s argument concerning prosecutorial misconduct. Ms.

Franks contends that the prosecutor’s statement, “There is enough evidence here

from her own words to convict her without Joe Scholz. But we wanted you to

have everything,” constitutes prosecutorial misconduct and deprived her of a fair

trial. The OCCA rejected a larger prosecutorial misconduct claim on the basis of

no plain error. 1 R. 117, 203-04. We agree with the magistrate judge that given

our deferential standard of review, the OCCA’s conclusion on this record is not

reasonably debatable, particularly given the context of the statement and the

strength of the evidence against Ms. Franks. See Douglas v. Workman, 560 F.3d

1156, 1177-78 (10th Cir. 2009) (per curiam) (analyzing state court plain error

                                          -5-
rejection of prosecutorial misconduct claim).

      We DENY a COA and IFP status and dismiss the appeal.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       -6-
