                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 12 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 BOBBY DON WARDEN,

           Petitioner - Appellant,
 vs.                                                    No. 01-6122
                                                 (D.C. No. CIV-00-1393-T)
 JAMES L. SAFFLE, Warden;                              (W.D. Okla.)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Petitioner Bobby Don Warden, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his habeas petition pursuant to 28 U.S.C. § 2254. We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Because Mr.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
Warden has failed to make a “substantial showing of the denial of a constitutional

right” as required by 28 U.S.C. § 2253(c)(2), we dismiss the appeal.

       Mr. Warden was convicted of unlawful distribution of methamphetamine

after former conviction of a felony and sentenced to forty years imprisonment and

directed to pay a $20,000 fine. His conviction and sentence were affirmed on

direct appeal. He then sought state post-conviction relief. The state district court

denied relief, and that denial was affirmed on appeal.

       In his federal petition, Mr. Warden raised four issues: (1) ineffective

assistance of trial counsel, (2) ineffective assistance of counsel on direct appeal,

(3) denial of confrontation rights as to an informant (Mr. Bearden), and (4)

improper sentence enhancement. Aplt. Br. at Ex. A. Mr. Warden’s two claims of

ineffective assistance of counsel can each be further broken down into (a) failure

to call witnesses at trial or to appeal that failure, (b) failure to raise the

confrontation issue, and (c) failure to raise the denial of his Sixth Amendment

right to compulsory process. Id.

       We have reviewed the record. As to those claims resolved on the merits by

the Oklahoma Court of Criminal Appeals (OCCA) either on direct appeal or on

post-conviction appeal, Mr. Warden has not demonstrated that the state court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United


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States.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 404

(2000)(opinion of O’Connor, J). Those claims include ineffective assistance of

trial or appellate counsel based upon a failure to call witnesses, denial of the right

to confront the informant, and the ostensible denial of Mr. Warden’s Sixth

Amendment right to compulsory process. We agree with the conclusions of the

magistrate judge and the district court that Mr. Warden has not demonstrated

deficient performance or prejudice based on these claimed omissions, or any

others discussed by the magistrate judge and the district court. We note that the

statement of the magistrate judge that Mr. Warden was required to “show that no

reasonable trier of fact would have found him guilty if they would have heard the

testimony of the omitted witnesses,” R. Doc. 15 at 6, is incorrect; Mr. Warden

need only demonstrate a reasonable probability that the outcome of the

proceeding would be different. See Strickland v. Washington, 466 U.S. 686, 687,

697 (1984). Mr. Warden has not made such a showing of prejudice, however.

      We also agree with the magistrate judge and the district court that Mr.

Warden’s remaining claims are procedurally barred because they could have been

raised upon direct appeal, but were not. These claims include: (1)(b) ineffective

assistance of trial counsel based on counsel’s failure to raise a denial of

confrontation, (1)(c) trial counsel’s denial of Mr. Warden’s Sixth Amendment

right to compulsory process, (3) denial of confrontation, and (4) improper


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enhancement of sentence. The OCCA held that all of these issues could have

been raised during Mr. Warden’s direct appeal and were, therefore, procedurally

barred from review in his post-conviction proceedings. The general rule is that

this court “does not address issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.”

English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). There is an exception to

the general rule for claims of ineffective assistance of counsel barred by state

procedural grounds unless the defendant “had different attorneys at trial and on

direct appeal and his ineffective assistance claim could have been reviewed from

the trial record alone.” James v. Gibson, 211 F.3d 543, 556 (10th Cir. 2000). In

this case, Mr. Warden did have different counsel at trial and on direct appeal, and

Mr. Warden’s ineffective assistance of counsel at trial claims could have been

reviewed from the trial record alone. The standard for all of the procedurally

barred claims is, therefore, “cause and prejudice” or “fundamental miscarriage of

justice.” English, 146 F.3d at 1259. We agree with the magistrate judge and

district court that Mr. Warden has not met either of these standards as to any of

the barred claims for substantially the same reasons set forth in the magistrate

judge’s report and recommendation. Doc. 15 at 13-21(cause and prejudice); Doc.

15 at 21 (fundamental miscarriage of justice).


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      We DENY Mr. Warden’s requests for a COA and IFP and DISMISS this

appeal.


                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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