                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            APR 7 2000
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ROBERT ANDERSON,

                  Petitioner-Appellant,

    v.                                                    No. 99-7027
                                                    (D.C. No. 92-CV-721-S)
    DAN REYNOLDS; ATTORNEY                                (E.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                  Respondent-Appellee.


                              ORDER AND JUDGMENT          *




Before BALDOCK , BRISCOE , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner-appellant Robert Anderson appeals from the district court’s order

dismissing his amended petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. This matter comes before us on appellant’s application for a certificate

of appealability (COA), which we construe as an application for a certificate of

probable cause (CPC) since his petition was filed prior to the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA).             See United States v.

Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

       Having carefully reviewed the record and the applicable law, we conclude

that the district court correctly determined that appellant has failed to exhaust the

claims in his amended petition.      See Dever v. Kansas State Penitentiary      , 36 F.3d

1531, 1534 (10th Cir. 1994). We also agree that the Oklahoma courts would

procedurally bar those of appellant’s claims which could have been raised on

direct appeal.   See Okla. Stat. tit. 22 § 1086 (West 2000);      Berget v. State ,

907 P.2d 1078, 1080-81 (Okla. Crim. App. 1995).

       We cannot say, however, that appellant’s claim of ineffective assistance

of counsel is procedurally barred. First, this claim cannot be barred on the

basis of appellant’s failure to file a direct appeal from his no contest plea.        See

Hickman v. Spears , 160 F.3d 1269, 1272 (10th Cir. 1998) (holding that time

frame for Oklahoma post-plea appeal is insufficient to allow appellant to develop

ineffective assistance of counsel claims on direct appeal). Second, although


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appellant subsequently failed to take timely appeal from the denial of his

application for post-conviction relief, the Oklahoma courts may still permit him to

remedy that omission. Appellant argues that he was misled about whether the

Oklahoma Appellate Public Defender was handling his appeal. Given these

circumstances, it is possible that the Oklahoma Court of Criminal Appeals

would now grant appellant an appeal out of time from the denial of his

application for post-conviction relief as to his ineffective assistance claim.

See Okla. Crim. App. R. 2.1(E), 5.2(A). Since appellant has an available

procedure for presenting this claim to the Oklahoma courts, he has not

exhausted this claim and his petition should be dismissed to allow him to do so.

See 28 U.S.C. § 2254(c); Rose v. Lundy , 455 U.S. 509 (1982).

      We therefore GRANT appellant’s application for a CPC, in order to

VACATE the district court’s judgment, and REMAND this case with instructions

to dismiss the petition to allow appellant to seek an appeal out of time or other

appropriate relief from the Oklahoma courts.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge



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