                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 2 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


GREGORY ALLEN CARPENTER,

          Petitioner-Appellant,
                                                       No. 00-6459
v.
                                                 (W. District of Oklahoma)
                                                 (D.C. No. 99-CV-1941-T)
JAMES L. SAFFLE, Director of the
Department of Corrections,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before the court on Gregory Allen Carpenter’s application for a

certificate of appealability (“COA”). Carpenter seeks a COA so that he can

appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.

See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the

denial of a § 2254 petition unless the petitioner first obtains a COA). Because

Carpenter has not “made a substantial showing of the denial of a constitutional

right,” this court denies his request for a COA and dismisses the appeal. Id. §

2253(c)(2).

      In his habeas petition, Carpenter challenged his convictions, entered upon

his pleas of nolo contendere, on charges of unlawful possession of a controlled

dangerous substance and delivery of a controlled dangerous substance. Carpenter

entered into a plea agreement pursuant to the Oklahoma Drug Court Act, see

Okla. Stat. tit. 22, §§ 471-471.11, wherein he agreed that the charges against him

would be dropped if he successfully completed a drug treatment program. If he

failed to successfully complete the program, however, the plea agreement

provided that Carpenter would be sentenced to a term of imprisonment of twenty-

five years on each charge, with the sentences to run concurrently. When

Carpenter failed to complete the drug treatment program, he was sentenced to

prison pursuant to the terms of the plea agreement. Carpenter asserted before the

district court, and reasserts on appeal, that his convictions are void because at the


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time he entered the plea agreement he had prior felony convictions and was not,

therefore, eligible for the drug court program.

      Carpenter’s petition was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge

recommended that Carpenter’s petition be denied on the ground that his claim was

procedurally barred. In particular, the magistrate judge noted that under

Oklahoma law, an appeal of a conviction based upon a plea of guilty must

commence with the filing of the motion to withdraw a guilty plea, the denial of

which may be appealed by writ of certiorari to the Oklahoma Court of Criminal

Appeals. See Okla. Stat. tit. 22, § 1051; Rule 4.2, Rules of the Court of Criminal

Appeals, Okla. Stat. tit. 22, Ch. 18, App. Carpenter’s failure to comply with these

procedural requirements constituted a waiver of the right to appeal his

convictions. See Okla. Stat. tit. 22, § 1086.

      Recognizing the applicability of the procedural bar, Carpenter asserted that

the procedural bar was not regularly applied in Oklahoma when a sentence is void

as a matter of law. See, e.g., Stewart v. State, 989 P.2d 940, 943 (Okla. Crim.

App. 1999). Carpenter further asserted that his sentences were void because his

previous felony convictions rendered him ineligible for the drug court program.

In support of this position, Carpenter cited to Stewart v. State, 989 P.2d 940




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(Okla. Crim. App. 1999) and Bumpus v. State, 925 P.2d 1208 (Okla. Crim. App.

1996).

         The magistrate judge rejected Carpenter’s assertion that his sentences were

void, noting that the Oklahoma Drug Court Act was not at issue in either Stewart

or Bumpus and that the Act, unlike the diversionary sentencing program at issue

in those cases, did not contain a provision making individuals with prior felonies

ineligible to participate. In fact, the Drug Court Act specifically contemplates

that participants in the program might have prior felony convictions. See Okla.

Stat. tit. 22, § 471.9 (providing that when a offender has completed the drug court

program, the case against the offender shall be “dismissed if the offense was a

first felony offense” or “shall be as specified in the written plea agreement” if the

offender “has a prior felony conviction”). Accordingly, the magistrate judge

concluded that Oklahoma’s procedural bar was adequate and applicable in this

case and that Carpenter could obtain review of his claim only upon showing cause

and prejudice for the procedural default or that the failure to consider the claim

on the merits would result in a fundamental miscarriage of justice. See Coleman

v. Thompson, 501 U.S. 722, 750 (1991).

         Because Carpenter did not assert that he was actually innocent of the

crimes for which he was convicted, the magistrate judge concluded that Carpenter

could not demonstrate a fundamental miscarriage of justice. See Klein v. Neal, 45


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F.3d 1395, 1400 (10th Cir. 1995). Furthermore, although Carpenter asserted that

his trial counsel was ineffective in failing to seek a writ of certiorari after the

district court denied his motion to withdraw his guilty plea, the magistrate judge

noted that the ineffective assistance claim could not serve as cause because it had

not been raised in state court. See Murray v. Carrier, 477 U.S. 478, 489 (1986);

Edwards v. Carpenter, 120 S. Ct. 1587, 1591-92 (2000). Accordingly, the

magistrate judge recommended that Carpenter’s § 2254 petition be denied on the

ground that the only claim presented was procedurally barred. Upon de novo

review, the district court accepted the magistrate judge’s report and

recommendation and denied the petition.

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make such a

showing by demonstrating that the issue he seeks to raise is debatable among

jurists, a court could resolve the issue differently, or that the question presented

deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Upon de novo review of Carpenter’s appellate filings, the magistrate

judge’s report and recommendation, the district court order, and the entire

appellate record, this court concludes that Carpenter has not made a substantial

showing of the denial of a constitutional right for substantially those reasons set

out in the magistrate judge’s thorough and well-reasoned report and


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recommendation dated October 4, 2000. Accordingly, this court GRANTS

Carpenter’s request to proceed in forma pauperis on appeal, DENIES his request

for a COA, and DISMISSES the appeal.

                                    ENTERED FOR THE COURT:



                                    Michael R. Murphy
                                    Circuit Judge




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