                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          August 31, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 ALVIN PARKER,

                  Petitioner-Appellant,                   No. 05-6119
          v.                                            (W.D. of Okla.)
 RANDALL G. WORKMAN, Warden,                      (D.C. No. CV-03-01581-T)
 and THE ATTORNEY GENERAL
 FOR THE STATE OF OKLAHOMA,

                  Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                  *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.            **




      Petitioner-Appellant Alvin Parker, a state prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. He also moves to proceed in forma

pauperis. We agree with the district court that the COA should not issue because


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Parker has not made a substantial showing of the denial of a constitutional right.

Accordingly, we DENY the COA and DISMISS the appeal.

                                   BACKGROUND

       In 1979 Parker was convicted in an Oklahoma court for robbery with a

firearm. In 2003 he sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254

from the United States District Court for the Western District of Oklahoma. In

that petition Parker alleged ineffective assistance of trial counsel based on his

attorney’s failure (1) to investigate and pursue a defense of voluntary intoxication

and (2) to seek a lower sentence or advise him of the possibility of appealing the

conviction based on that defense.

       The district court denied Parker’s petition as well as his application for a

COA. The court concluded that voluntary intoxication was not a legitimate

defense to the charged crime, so any failure to pursue such a defense was not

ineffective. Furthermore, because Parker had not told his attorney that he wanted

to appeal, and because voluntary intoxication was not a viable defense, failure to

advise Parker of his right to appeal on this ground was not ineffective under   Roe

v. Flores-Ortega , 528 U.S. 470, 479–80 (2000) (holding that counsel has a duty to

advise a client about an appeal where “a rational defendant would want to

appeal,” i.e., “there are nonfrivolous grounds for appeal”).




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                                      ANALYSIS

      A circuit court may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Where, as in this case, a district court “has rejected the

constitutional claims on the merits,” an applicant meets this standard by

“demonstrat[ing] that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.”     Miller-El v. Cockrell , 537 U.S.

322, 338 (2003) (quoting    Slack v. McDaniel , 529 U.S. 473, 484 (2000)). This

analysis “requires an overview of the claims in the habeas petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.”     Id. at 336.

      Here, reasonable jurists would not find the district court’s assessment of

Parker’s claims debatable or wrong. Parker concedes the district court properly

concluded that voluntary intoxication would not have been a valid defense.

(Application for COA at 2.a.) Thus, reasonable jurists would not debate whether

counsel was ineffective for failing to raise this defense in the original proceedings

or on appeal.

      Parker also argues for the first time in his COA application that his attorney

should have informed him of his right to appeal because the Oklahoma Court of

Criminal Appeals has, in the past, reduced sentences where the defendant was


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intoxicated when he committed the crime. (Application for COA at 2.a (citing

Stanley v. State , 489 P.2d 495 (Okla. Crim. App. 1971) (reducing sentence in the

interest of substantial justice);   Vick v. State , 465 P.2d 767 (Okla. Crim. App.

1970); Wyatt v. State , 100 P.2d 283 (Okla. Crim. App. 1940)).) He did not raise

this argument in his original petition, claiming instead that he “would have timely

appealed the conviction because his intoxication was a valid defense that rendered

him incapable of forming the requisite intent.” (Petition for Writ of Habeas

Corpus at 6.

       However, an appellate court typically “will not consider an issue raised for

the first time on appeal,” especially “where a litigant changes to a new theory on

appeal that falls under the same general category as an argument presented at

trial.” Tele-Communications, Inc. v. Comm’r        , 104 F.3d 1229, 1232–33 (10th Cir.

1997). We, thus, decline to issue a COA based on an argument that was not

raised below and would be unreviewable on the merits.

                                      CONCLUSION

       Accordingly, we GRANT Parker’s motion to proceed in forma pauperis, but

we DENY the COA and DISMISS the appeal.



                                                   Entered for the Court

                                                   Timothy M. Tymkovich
                                                   Circuit Judge

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