                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 12 1997

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk


 VERNON RAY BROWN,

          Petitioner-Appellant,
 v.
                                                        No. 97-7053
                                                  (D.C. No. CV-93-895-B)
 RON CHAMPION; ATTORNEY
                                                        (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

          Respondents-Appellees.



                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO 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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

      Vernon Brown was convicted in state court of second degree burglary. He

brought this petition for federal habeas corpus relief under 28 U.S.C. § 2254,


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
asserting that his Fourth Amendment rights were violated when the police

searched a car left in a parking lot and the items found in the car were used as

evidence against him. He also claims that his appellate counsel was ineffective in

failing to raise this issue in his direct appeal. 1 The matter was referred to a

magistrate judge, who recommended that the claims be dismissed as procedurally

barred. The district court adopted the report, dismissed the claims, and denied

Mr. Brown a certificate of appealability. We likewise conclude that Mr. Brown

has failed to make the requisite showing and deny his application for a certificate

of appealability.

      Mr. Brown filed a direct appeal in which he asserted that his trial counsel

was ineffective with respect to Mr. Brown’s waiver of a jury trial. Mr. Brown

also filed a petition for state post-conviction relief in which he again asserted the

ineffectiveness of trial counsel, and an amended petition challenging the

admission of the items found in the car search. The state district court did not

rule on the car search challenge because the amended petition was filed too late,

and the appellate court ruled alternatively that the claim was defaulted because it

could have been brought on direct appeal. Mr. Brown has never presented his

claim of ineffective appellate counsel to the state courts.


      1
        Mr. Brown raised other claims in these proceedings, which he has
abandoned in this appeal. The only issues he addresses in his appellate brief are
the two set out above.

                                          -2-
      Mr. Brown alleges that his Fourth Amendment rights were violated by the

search of a car parked in a lot near the scene of the burglary where Mr. Brown

was arrested. The state appellate court’s ruling that this claim was defaulted

when it was not raised on direct appeal bars federal habeas review absent a

showing of cause and prejudice or a fundamental miscarriage of justice. Coleman

v. Thompson, 501 U.S. 722, 750 (1991). Although Mr. Brown has asserted that

he did not raise this issue on direct appeal due to the incompetence of his

appellate counsel, as we discuss below our review of the incompetent counsel

claim is itself barred by Mr. Brown’s failure to raise it in state court. Mr. Brown

has thus not shown cause and we therefore may not consider the car search claim

absent a showing of a fundamental miscarriage of justice. To satisfy this narrow

exception to procedural bar, Mr. Brown must do more than make an unsupported

assertion of factual innocence. He must present evidence sufficient to undermine

our confidence in the outcome of the trial. See Schlup v. Delo, 513 U.S. 298, 316

(1995). Mr. Brown has failed to make this showing, and habeas review of this

claim is therefore barred.

      Mr. Brown also asserts that his appellate counsel was ineffective in failing

to raise the Fourth Amendment issue on appeal. Although a federal court may not

hear a claim under section 2254 that has not been exhausted, the exhaustion

requirement is satisfied if it is clear that the claim is procedurally barred under


                                          -3-
state law. See Gray v. Netherland, 116 S. Ct. 2074, 2080 (1996). Such a claim is

not cognizable in federal habeas proceedings unless a petitioner can show cause

and prejudice, or show that a fundamental miscarriage of justice would result

from the failure to consider the claim. See id. at 2080-81.

      Oklahoma law provides that any claim not raised in a petitioner’s first

petition for post-conviction relief may not be the basis for a subsequent petition

unless a sufficient reason is asserted for the failure to raise the claim earlier. See

Okla. Stat. tit. 22, § 1086. Mr. Brown has not presented this claim to state courts

at all and has offered no reason for his failure. The claim is therefore

procedurally barred and exhausted under state law. Mr. Brown has not shown

cause for his failure nor, as discussed above, has he shown a fundamental

miscarriage of justice. Federal habeas review is thus precluded.

      For the reasons set forth, we conclude that Mr. Brown has failed to

demonstrate the denial of a constitutional right by showing that the issues raised

in his appeal are debatable among jurists; that a court could resolve the issues

differently; or that the questions deserve further proceedings. The certificate of

appealability is DENIED and the appeal DISMISSED.

                                                ENTERED FOR THE COURT


                                                Stephanie K. Seymour
                                                Chief Judge


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