                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        July 17, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 M ICHAEL LYNN ARCHER,

              Petitioner-A ppellant,                    No. 06-6083
       v.                                           (W . D. Oklahoma)
 CHARLES RAY, W arden; DAVIS                          (05-CV-536-M )
 C ORREC TIO N A L FA CILITY ;
 STA TE OF O K LA H O MA ; R ON
 W A RD ,

             Respondents-Appellees.



                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      M ichael Lynn Archer, an Oklahoma state prisoner proceeding pro se, seeks

a certificate of appealability (“COA”) to appeal the district court’s order

dismissing his 28 U.S.C. § 2254 petition for a w rit of habeas corpus. M r.

Archer’s petition raised twelve claims. The magistrate judge’s report and

recommendation suggested dismissal of nine of the claims because they were

procedurally defaulted when M r. Archer failed to timely perfect his state appeal;

it recommended dismissal of two claims based upon the reasonableness of the

state court’s findings; it recommended dismissal of the final claim, in w hich M r.

Archer requested an evidentiary hearing on the grounds that M r. Archer did not
meet the statutory requirements for granting such hearings. The district court

adopted the report and recommendation, denied the petition, and granted M r.

Archer’s request to proceed in form a pauperis (“IFP”) to file this COA. For

substantially the same reasons as outlined in the report and recommendation, w e

deny M r. Archer’s application for a COA and dismiss this matter.

                                  B ACKGROUND

      In 2002, a jury in the district court of Grady County, Oklahoma convicted

M r. Archer of two counts of lewd molestation, in violation of Okla. Stat. tit. 21 §

1123(a)(2), and one count of indecent exposure, in violation of Okla. Stat. tit. 21

§ 1021(a)(1), all committed after five previous felony convictions. The jury

recommended sentences of twenty years on each count, and the judge imposed

those counts consecutively. After the Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed his conviction and the United States Supreme Court denied

his petition for certiorari, M r. Archer sought post-conviction relief in the district

court of Grady County. After that court denied the petition, M r. Archer filed an

appeal with the OCCA. This appeal was dismissed as untimely, and M r. Archer

sought relief in federal court.

      In federal court, M r. Archer raised twelve grounds for relief: (1) the

“religious atmosphere” (a carving reflecting the Biblical lex talionis rule) of the

courtroom violated the Establishment Clause, (2) the judge had personal interest

in his case, (3) his sentences were excessive, (4) prosecutorial misconduct, (5)

                                           2
portions of his charges had been previously dismissed, (6) he was incompetent,

(7) his due process rights were violated by evidentiary admissions, (8) he was

denied the right to be present at all stages of his trial, (9) the state was not

required to properly prove every element of the alleged crimes, (10) and (11)

ineffective assistance of trial and appellate counsel, respectively, and (12)

entitlement to an evidentiary hearing.

                                     DISCUSSION

      Issuance of a CO A is jurisdictional and may be granted “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). M r. Archer may make this showing by demonstrating

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong, or if the ruling was procedural, that

jurists of reason would find it debatable w hether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling. See

M iller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

        The magistrate judge recommended that grounds one, two, and five

through eleven should be dismissed due to procedural default. On habeas review ,

a federal court does not review any claims that a petitioner has defaulted in state

court absent a showing that: (1) a cause outside the control of the petitioner

caused the default, and the petitioner has suffered prejudice, or (2) a fundamental

                                            3
miscarriage of justice would occur absent review. Bousley v. United States, 523

U.S. 614, 622 (1998). This circuit has held that noncompliance with the O CCA’s

post-conviction filing requirements procedurally bars federal habeas review.

Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998).

      M r. Archer argues particularly vigorously that he presented sufficient cause

to overcome this procedural bar because the delay in filing the post-conviction

petition with the OCCA was not his fault. He contends that only an IFP affidavit,

which may be filed separately from the post-conviction notice of appeal, was

untimely filed. The IFP affidavit requires information that prison officials must

generate, and M r. Archer includes with his application letters from prison

officials assuming the blame for the late IFP affidavit filing.

      W e are not persuaded by M r. Archer’s argument. In particular, he fails to

show any cause regarding his failure to timely file the notice of appeal to the

OCCA. Our independent review of the record in this case reveals that M r. Archer

mistakenly mailed the notice of appeal to the Grady County district court, rather

than to the OCCA, and did not realize his error until after the period for filing

with the OCCA had passed. See State Ct. Rec., vol. II (note from Grady County

Deputy Court Clerk, written on June 2, 2004 letter from M r. Archer, explaining,

in response to M r. Archer’s request for a file-stamped copy of the Notice of Intent

to Appeal, that M r. Archer “need[ed] to file [his] appeal with the Court of

Criminal Appeals – not the D istrict Court. You are appealing the D istrict Court

                                          4
ruling.”). Thus, even if the prison officials had not delayed M r. Archer’s IFP

application, M r. Archer’s notice of appeal would have been filed after the

OCCA’s filing deadline expired.

     W ith respect to grounds three and four, which raised an Eighth Amendment

challenge to the length of his sentence and a due process challenge to the

prosecutor’s conduct during trial respectively, the magistrate judge found that

aspects of these claims had not been procedurally defaulted. Applying the

deference required by § 2254 when a petition raises issues that have been

previously adjudicated by a state court, the magistrate judge recommended

dismissal of these claims on the merits.

      W e agree with the magistrate judge. M r. Archer’s Eighth Amendment

claim that the state court should not have imposed his sentences consecutively is

clearly foreclosed by our precedent. Hawkins v. Hargett, 200 F.3d 1279, 1285 n.5

(10th Cir. 1999) (“The Eighth Amendment analysis focuses on the sentence

imposed for each specific crime, not on the cumulative sentence for multiple

crimes.”). Additionally, as explained in the magistrate judge’s thorough review

of M r. Archer’s claim of prosecutorial misconduct, M r. Archer has not shown that

the OCCA’s determinations with respect to this claim were contrary to or an

unreasonable application of Supreme Court precedent. Finally, with respect to

M r. Archer’s final claim, a request for an evidentiary hearing, we note that 28

U.S.C. § 2254(e)(2) governs this request, and that M r. Archer has failed to show

                                           5
that his claim to a hearing “relies on a new rule of constitutional law . . . [or] a

factual predicate that could not have been previously discovered through the

exercise of due diligence.”

       W e have reviewed M r. Archer’s request for a COA, the magistrate judge’s

report and recommendation, the district court’s orders, and the record on appeal.

For substantially the same reasons set forth by the magistrate judge, we conclude

that M r. Archer is not entitled to a COA. The magistrate judge's recommendation

reflects a careful analysis of the record and is supported by the applicable law.

       W e have also review ed M r. Archer’s request for injunctive relief, filed July

5, 2006, asking us to direct the Department of Corrections to permit him

additional storage space in his cell for legal materials. “A party must ordinarily

move [for injunctive relief] first in the district court.” F ED . R. A PP . P. 8(a)(1). A

motion may be made directly to this court, but the movant must “show that

moving first in the district court would be impracticable.” Id. 8(a)(2)(A)(I).

Because M r. Archer has not shown (or even argued) that moving first in the

district court would be impracticable, we deny his request.

       Because jurists of reason would not find the conclusions made below

debatable, we DENY M r. Archer’s application for a COA, DENY his request for




                                            6
injunctive relief, and DISM ISS this matter.



                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




                                          7
