                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



RONALD LEE KING,

              Petitioner - Appellant,
                                                         No. 09-5059
       v.                                             (N.D. Oklahoma)
                                            (D.C. No. 4:06-CV-00152-CVE-TLW)
GREG PROVINCE, Warden,

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Appellant, Ronald Lee King, seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because King has not “made a substantial showing of the denial

of a constitutional right,” this court denies his request for a COA and dismisses

this appeal. Id. § 2253(c)(2).

      After an Oklahoma jury trial, King was convicted of unlawful distribution

of a controlled drug after former conviction of two or more felonies, in violation

of Okla. Stat. tit. 63, § 2-401. He was sentenced to twenty-five years’
imprisonment and fined $30,000. King filed a direct appeal with the Oklahoma

Court of Criminal Appeals (“OCCA”), challenging: (1) an evidentiary ruling

permitting the admission of the crack cocaine he sold to the undercover officer,

(2) the denial of his discovery request for the undercover officer’s notes, (3) the

length of his sentence, (4) statements made by the prosecutor during closing

argument, and (5) the imposition of the fine. The OCCA affirmed King’s

conviction but reduced the fine to $10,000. King then raised eleven grounds of

error in a post-conviction application he filed in Oklahoma state court. His post-

conviction claims included (1) allegations of ineffective assistance of appellate

and trial counsel, (2) a challenge to the jury instructions (3) an allegation the

process used to choose the jury violated his right to due process and equal

protection, (4) a Confrontation Clause claim, (5) an assertion the state presented

insufficient evidence to convict him, and (6) several state law claims. The

Oklahoma trial court denied the post-conviction application and that ruling was

affirmed by the OCCA.

      King filed the instant § 2254 habeas petition on March 13, 2006. In his

petition, King reasserted two of the issues he previously raised on direct appeal:

the challenges to the evidentiary rulings and the allegation of prosecutorial

misconduct. He also reasserted issues raised in his state post-conviction

application: the allegations of ineffective assistance of trial and appellate counsel,

the claim his sentence violates Oklahoma state law, and the Confrontation Clause

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issue. The district court denied habeas relief on King’s challenge to the trial

court’s evidentiary rulings and his prosecutorial misconduct claim, concluding he

failed to demonstrate that his trial was rendered fundamentally unfair. See

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002); Cummings v. Evans, 161

F.3d 610, 618 (10th Cir. 1998). Applying the standard set forth in the

Antiterrorism and Effective Death Penalty Act, the district court concluded the

OCCA’s adjudication of King’s ineffective assistance of appellate counsel claim

was not contrary to, nor an unreasonable application of clearly established federal

law. 28 U.S.C. § 2254(d). Finally, the district court analyzed King’s remaining

claims, all of which were procedurally defaulted in Oklahoma state court because

he failed to raise them on direct appeal, and determined the state procedural bar

was independent and adequate. The court then concluded it was procedurally

barred from considering the claims because King failed to show cause for the

default and actual prejudice or that the failure to review his claims would result in

a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,

750 (1991).

      To be entitled to a COA, King must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

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proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

King has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El at 338. Although King need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id. (quotations omitted).

      In his appellate brief, King presents fifteen grounds for relief, many of

which were not included in his § 2254 application. This court does not consider

issues raised for the first time on appeal. Rhine v. Boone, 182 F.3d 1153, 1154

(10th Cir. 1999). As to the remaining claims which were presented to the district

court, this court has reviewed King’s application for a COA and appellate brief,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes King is not

entitled to a COA. The district court’s resolution of King’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, King has not “made a substantial showing of the

                                          -4-
denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2).

      This court denies King’s request for a COA and dismisses this appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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