                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JAN 8 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 COSTON LINCOLN MOORE,

           Petitioner - Appellant,
 vs.                                                    No. 00-5058
                                                  (D.C. No. 97-CV-273-K)
 STEVE HARGETT,                                         (N.D. Okla.)

           Respondent - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Coston Lincoln Moore, an inmate appearing pro se, seeks to appeal from

the dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Upon consideration, we conclude that petitioner has not made “a substantial

showing of the denial of a constitutional right,” and we deny his application for a

certificate of appealability. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel,


       *
        This order and judgment is not binding precedent, except under the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.
120 S. Ct. 1595, 1603-04 (2000).



                                     Background

      In 1990, Mr. Moore was convicted of manslaughter in the first degree

(Count I), five counts of assault and battery with a dangerous weapon (Counts II -

VI), and one count of maiming (Count VII). The charges arose out of a single

incident in which Mr. Moore drove his car through the wall of an apartment,

killing one occupant and injuring five others. One of the occupants, a seventeen-

year-old girl, was severely injured when the car struck the back of her right leg,

nearly amputating the limb. Tr. at 202, 207-08. Following the jury’s

recommendations, the trial court sentenced Mr. Moore to seven consecutive

terms: thirty years for Count I, no less than twenty years each for Counts II

through VI, and twenty-five years for Count VII. The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed Mr. Moore’s conviction and sentences. His

application for state post-conviction relief was denied, and the OCCA again

affirmed on appeal. In 1997, he filed the present petition in federal court; the

district court dismissed the petition and denied a certificate of appealability.

      Mr. Moore raises three arguments in his application to this court. First, he

argues that Flores v. State, 896 P.2d 558, 562 (Okla. Crim App. 1995), requires

that his conviction be reversed on the basis of the trial court’s instruction that the


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defendant was “presumed to be not guilty” rather than “presumed innocent.”

Aplt. Br. at 18. Second, he asserts that his “Trial and Appellate Counsel were

both ineffective . . . for failure to conduct an adequate legal research investigation

of ‘presumed to be not guilty.’” Id. at 19. Finally, Mr. Moore argues that he was

improperly punished seven times for a single act. Id. at 2.



                                      Discussion

      Under Oklahoma law, the defendant waives all claims that could have been

-- but were not -- raised on direct appeal. Okla. Stat. tit. 22, § 1086; e.g.,

Slaughter v. State, 969 P.2d 990, 999 (Okla. Crim. App. 1998). Mr. Moore did

not object to the trial court’s “presumed to be not guilty” instruction, nor did he

challenge the instruction on direct appeal. Accordingly, when the OCCA

affirmed the lower court’s denial of Mr. Moore’s application for post-conviction

relief, the court held that Mr. Moore had “waived and bypassed the right to assert

the issue and it may not be the basis of this post-conviction application.” Moore

v. Oklahoma, No. PC 96-1500, slip op. at 3 (Okla. Crim. App. Feb. 18, 1997).

The doctrine of procedural default prohibits a federal court, on habeas review,

from considering claims which the state’s highest court declined to reach because

of an adequate and independent state procedural defect, unless the habeas

petitioner can meet the “cause and prejudice” standard set forth by the Supreme


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

      Mr. Moore appears to argue that because Flores established a new rule in

1995, he could not have objected to the trial court’s instruction in 1990. This

argument arises under state law. See Walker v. State, 933 P.2d 327, 338 (Okla.

Crim. App. 1997) (holding that “Flores simply reiterated and enforced long

standing case law and statutory rules” and that a pre-Flores failure to challenge a

“presumed not guilty” instruction was waiver). It is therefore an inadequate basis

for federal habeas relief. 28 U.S.C. § 2254(d).

      Mr. Moore then asserts that his trial and appellate counsels’ failure to

conduct adequate legal research regarding the “presumed to be not guilty”

instruction was constitutionally deficient under Strickland v. Washington, 466

U.S. 668, 687 (1984), and that he was thereby prejudiced. We recently considered

and rejected an identical argument in Sherrill v. Hargett, 184 F.3d 1172, 1175-76

(10th Cir.), cert. denied, 528 U.S. 1009 (1999). Although an ineffective

assistance of counsel claim, if meritorious, is “cause” excusing procedural

default, United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996), the district court

properly concluded that Mr.   Moore’s ineffective assistance of appellate counsel

claim was without merit. Moore v. Hargett, No. 97-CV-273-K, slip op. at 13-14

(N.D. Okla. Mar. 31, 2000) (Doc. 19). “[I]t was reasonable for petitioner’s

appellate counsel to rely on the general principle that an instruction using the


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particular phrase ‘presumption of innocence’ is not required” to preserve his

constitutional rights. Sherrill, 184 F.3d at 1176. Given that Mr. Moore had

different trial and appellate counsel, however, we affirm the district court’s

conclusion that Petitioner’s ineffective assistance of trial counsel claim is barred

by procedural default. Doc. 19 at 14-18.

      Third, Mr. Moore asserts that he was improperly punished seven times for a

single act. Aplt. Br. at 19.5. 1 The OCCA rejected this claim on the merits in Mr.

Moore’s direct appeal. Moore v. Oklahoma, No. CF 90-1098, slip op. at 10-11

(Okla. Crim. App. Feb. 28, 1994). In his brief to this court, Mr. Moore relies

primarily on state authority, including a lengthy quote from a dissenting opinion

in an unidentified case. Aplt. Br. at 19.5-.6. Although the quote includes a

number of citations to federal double jeopardy cases, none of those cases

indicates that the OCCA’s state law-based rejection of the multiple punishments

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

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

States.” 28 U.S.C. § 2254(d)(1). We therefore reject this claim as well.




      1
       Mr. Moore’s brief includes several inserted pages, including six between
pages 19 and 20.

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     Mr. Moore’s application for a certificate of appealability is DENIED and

the appeal is DISMISSED.

                                    Entered for the Court


                                    Paul J. Kelly, Jr.
                                    Circuit Judge




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