                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 23 1997
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 MADYUN ABDULHASEEB,

          Petitioner-Appellant,
                                                       No. 96-6348
 v.                                              (D.C. No. CIV-96-379-A)
                                                       (W.D. Okla.)
 STEVE HARGETT

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, 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 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        This order and judgment is not binding precedent except under the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 Madyun Abdulhaseeb seeks to appeal the the United States

District Court for the Western District of Oklahoma's denial of his petition for a

writ of habeas corpus. In 1981, Mr. Abdulhaseeb was convicted in Oklahoma

County District Court for second degree burglary after the former conviction of

two or more felonies and first degree rape after the former conviction of two or

more felonies. See Thomas v. Oklahoma, 675 P.2d 1016, 1018 (Okla. Crim.

App.), cert. denied, 466 U.S. 942 (1984). 1 The court sentenced Mr. Abdulhaseeb

to twenty-five years imprisonment and 150 years imprisonment on the respective

counts, the sentences to run consecutively. Id.



      Although Mr. Abdulhaseeb appealed his convictions, the Oklahoma Court

of Criminal Appeals affirmed, see id. at 1023, and the United States Supreme

Court denied certiorari. Thomas v. Oklahoma, 466 U.S. 942 (1984). Mr.

Abdulhaseeb then filed two motions for post-conviction relief with the Oklahoma

County District Court. The Oklahoma County District Court denied both motions.

Thereafter, in 1991, Mr. Abdulhaseeb filed a petition for a writ of habeas corpus

in the United States District Court for the Western District of Oklahoma. 2 See

      1
       At the time of his 1981 convictions, Mr. Abdulhaseeb apparently was
named Jerry Lewis Thomas. See id.
      2
         In his 1996 petition for a writ of habeas corpus, Mr. Abdulhaseeb
conspicuously fails to allege that he filed a previous habeas corpus petition in
federal court.

                                         -2-
Thomas v. Cowley, No. 92-6267, 1993 WL 220607, at *2-5 (10th Cir. June 22,

1993) (unpublished disposition), cert. denied, 510 U.S. 1126 (1994). The district

court denied the petition, and the Tenth Circuit Court of Appeals affirmed the

judgment of the district court. Id. at *1, *5.



      In March 1996, Mr. Abdulhaseeb filed his present, second, federal petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Mr.

Abdulhaseeb argues his 1981 convictions for second degree burglary and first

degree rape are invalid because he was denied the effective assistance of counsel 3

and because the prior convictions used to enhance his sentence were

unconstitutionally treated as adult convictions, though he was a juvenile at the

time of the prior convictions.



      On September 26, 1996, the district court dismissed Mr. Abdulhaseeb's



      3
          Mr. Abdulhaseeb also raised an ineffective assistance of counsel claim in
his first habeas petition. See Thomas, 1993 WL at *3-4. However, it appears the
ineffective assistance of counsel claim raised in the earlier petition was
predicated on different grounds than the ineffective assistance of counsel claim
asserted in the present petition. In the 1991 petition, Mr. Abdulhaseeb apparently
argued he was denied effective assistance of counsel due to a conflict of interest
and due to his trial counsel's failure to subpoena certain witnesses. Id. In the
1996 petition, Mr. Abdulhaseeb argues his trial counsel and appellate counsel
were ineffective because they failed to raise the issue of an improper jury
instruction regarding the burden of proof and presumption of innocence.

                                          -3-
petition as an abusive filing. The district court also denied Mr. Abdulhaseeb a

certificate of appealability. Mr. Abdulhaseeb then filed a Notice of Appeal with

this court.



II. CERTIFICATE OF APPEALABILITY

       Mr. Abdulhaseeb seeks to appeal the district court's denial of his petition

for a writ of habeas corpus. 28 U.S.C. § 2253(c)(1) (1997) provides "an appeal

may not be taken to the court of appeals from ... the final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court" unless a circuit judge issues a certificate of appealability. 4 "A

certificate of appealability may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2).



       Mr. Abdulhaseeb raises two principle arguments in his current petition.

First, he contends his 1981 convictions are improper because the former felony



       4
         28 U.S.C. § 2253(c) applies to all notices of appeal filed after April 24,
1996, the date on which the President signed the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. See Houchin v.
Zavaras, 107 F.3d 1465, 1468 (10th Cir. 1997) (applying § 2253 to notice of
appeal filed April 26, 1996). Because Mr. Abdulhaseeb filed his Notice of
Appeal on October 3, 1996, 28 U.S.C. § 2253(c) is applicable to this appeal.

                                          -4-
convictions used to enhance his sentences were unconstitutionally treated as adult

convictions. Second, Mr. Abdulhaseeb argues his 1981 convictions were obtained

in violation of the Due Process Clause of the Fourteenth Amendment because he

was deprived of the effective assistance of counsel at his jury trial and on direct

appeal.



      Before determining whether Mr. Abdulhaseeb's contentions amount to a

"substantial showing of the denial of a constitutional right" so as to warrant

issuance of a certificate of appealability, we must first ascertain whether the

district court properly determined Mr. Abdulhaseeb's petition should be dismissed

for abuse of the writ. If Mr. Abdulhaseeb has abused the writ with respect to the

two claims he seeks to raise in his habeas petition, his appeal cannot proceed, and

we must deny a certificate of appealability. In general, the abuse-of-the-writ

doctrine "prohibits subsequent habeas consideration of claims not raised, and thus




                                          -5-
defaulted, in the first federal habeas proceeding." 5 McCleskey v. Zant, 499 U.S.

467, 490 (1991).

      When a prisoner files a second or subsequent [habeas corpus]
      application, the government bears the burden of pleading abuse of
      the writ. The government satisfies this burden if, with clarity and
      particularity, it notes petitioner's prior writ history, identifies the
      claims that appear for the first time, and alleges that petitioner has
      abused the writ. The burden to disprove abuse then becomes
      petitioner's. To excuse his failure to raise the claim earlier, he must
      show cause for failing to raise it and prejudice therefrom ....

Id. at 494. To establish cause, the petitioner must show "'some objective factor

external to the defense impeded [the defendant's] efforts' to raise the claim" in the

first petition. 6 Id. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

      5
         We recognize the Antiterrorism and Effective Death Penalty Act of 1996
established new standards for evaluating second or successive habeas corpus
petitions. See 28 U.S.C. § 2244(b); Hatch v. Oklahoma, 92 F.3d 1012, 1014 (10th
Cir. 1996). However, because Mr. Abdulhaseeb filed this habeas petition prior to
the enactment of the Antiterrorism and Effective Death Penalty Act, we assume
the new standards do not apply to Mr. Abdulhaseeb's petition. See United States
v. Fykes, No. 96-1138, 1996 WL 699762, at *1 n.1 (10th Cir. Dec. 5, 1996)
(unpublished disposition) (holding the successive petition provisions of
Antiterrorism and Effective Death Penalty Act are inapplicable to case filed
before date of enactment); Williams v. Calderon, 83 F.3d 281, 285 (9th Cir. 1996)
(holding amendments to 28 U.S.C. § 2244(b) do not apply to petition filed two
days prior to enactment of Antiterrorism and Effective Death Penalty Act). Even
if we were to apply the more restrictive successive petition standards contained in
the Antiterrorism and Effective Death Penalty Act, see Reid v. Oklahoma, 101
F.3d 628, 629 n.2 (10th Cir. 1996), petition for cert. filed, (March 13, 1997) (No.
96-8211), we would conclude that review of Mr. Abdulhaseeb's petition is barred
under amended § 2244(b).
      6
        A petitioner need not establish cause if he can show a fundamental
miscarriage of justice would result from a failure to decide the claim. McCleskey,
499 U.S. at 494-95. In other words, we will excuse cause where the petitioner

                                         -6-
If the petitioner can establish cause, he must then show "actual prejudice"

resulted from the error of which he complains. Id. at 494.



      In the present case, the government filed a motion in the district court

citing Mr. Abdulhaseeb's prior writ history. Although the government's motion

sought to compel Mr. Abdulhaseeb to comply with the 1996 amendments to 28

U.S.C. § 2244(b), we believe the motion sufficiently raised abuse of the writ.

Thus, we must determine whether Mr. Abdulhaseeb can establish cause and

prejudice for his failure to raise each of his claims in his prior petition.



      First, we turn to Mr. Abdulhaseeb's contention that his 1981 convictions are

invalid because the former felony convictions used to enhance his punishment are

unconstitutional. Assuming, without deciding, Mr. Abdulhaseeb can establish

cause for failure to raise this claim, 7 we do not believe he can show actual

prejudice. While under eighteen years of age, Mr. Abdulhaseeb was convicted

twice in 1962 as an adult of second degree burglary (Case Nos. 27876 and 27984)

and convicted once in 1964 as an adult of second-degree rape (Case No. 29664).


makes a "'colorable showing of factual innocence.'" Id. at 495 (quoting
Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)).
      7
         Citing a number of cases, Mr. Abdulhaseeb ostensibly contends an
intervening/supervening change in the law is the "cause" for his failure to raise
the claim in his prior petition.

                                           -7-
Thomas, 675 P.2d at 1020 n.6. Thereafter, in 1972, the Tenth Circuit Court of

Appeals declared unconstitutional the statute under which Mr. Abdulhaseeb was

tried as an adult. See Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972).



      In 1980, when Mr. Abdulhaseeb was charged with second degree burglary

and first degree rape, the state filed an information listing the 1962 and 1964

convictions as grounds for an enhancement of punishment. Thomas, 675 P.2d at

1020. However, prior to trial, the state amended the information to delete the two

1962 convictions and to add a 1972 conviction for robbery with a firearm and a

1973 conviction for carrying a firearm. Id. Thus, two valid prior felonies support

Mr. Abdulhaseeb's 1981 sentence enhancements -- the 1972 conviction and the

1973 conviction. Because only two prior convictions are necessary under

Oklahoma law for the punishment enhancement Mr. Abdulhaseeb received, see

Okla. Stat. tit. 21 § 51, Mr. Abdulhaseeb's 1981 convictions and sentences can be

sustained even if the 1964 conviction alleged in the amended information was

unconstitutional. See Webster v. Estelle, 505 F.2d 926, 931 (5th Cir. 1974)

("[w]here enhancement could have been based on other convictions, reliance on

an invalid one is harmless"), cert. denied, 421 U.S. 918 (1975); Gerberding v.

Swenson, 435 F.2d 368 (8th Cir. 1970) (because only one prior felony was

necessary to support enhancement, court affirmed conviction where one of three


                                         -8-
prior felonies admitted on enhancement issue was retroactively invalid), cert.

denied, 403 U.S. 906 (1971); Beavers v. Alford, 582 F. Supp. 1504, 1506 (W.D.

Okla. 1984) (sentencing court's reliance on invalid conviction is harmless when

enhancement could be based upon petitioner's other convictions). We therefore

conclude Mr. Abdulhaseeb cannot establish prejudice for failure to assert his first

claim in a prior petition. 8



       Next, we must determine whether Mr. Abdulhaseeb has abused the writ

with respect to his ineffective assistance of counsel claim. Mr. Abdulhaseeb

appears to argue his trial counsel and appellate counsel were ineffective because

they failed to raise the issue of an improper jury instruction regarding the burden

of proof and presumption of innocence. Mr. Abdulhaseeb contends an

"intervening/supervening" change in the law provides "cause" for his failure to

assert this claim in his prior petition. Mr. Abdulhaseeb cites a number of cases


       8
         Mr. Abdulhaseeb also alleges the Oklahoma trial court was without
jurisdiction to enter a 1980 "Consent Decree for Orders Granting Post-Conviction
Relief." The consent decree, inter alia, voided one of Mr. Abdulhaseeb's 1962
convictions and modified the sentences for Mr. Abdulhaseeb's 1972 and 1973
convictions. Thomas, 675 P.2d at 1020 n.6. Assuming, without deciding, Mr.
Abdulhaseeb is correct and the court did not have jurisdiction to enter the decree,
this would not render the 1972 and 1973 convictions invalid, as Mr. Abdulhaseeb
appears to argue. See Apt's brief at 7 ("those two convictions ... were filed
illegal.")). Nor would it entitle Mr. Abdulhaseeb to any relief under 28 U.S.C.
§ 2254. Hence, we need not determine whether the trial court had jurisdiction to
enter the 1980 consent decree.

                                         -9-
that he contends are "intervening/ supervening decisions," including United States

v. Gaudin, 115 S. Ct. 2310 (1995), Sullivan v. Louisiana, 508 U.S. 275 (1993);

United States v. Wiles, 102 F.3d 1043 (10th Cir. 1996); and Harmon v. Marshall,

69 F.3d 963 (9th Cir. 1995).



      Our review of the cases cited by Mr. Abdulhaseeb does not lead us to

conclude there has been an intervening change of law with respect to Mr.

Abdulhaseeb's ineffective assistance of counsel claim. Thus, we conclude Mr.

Abdulhaseeb cannot establish cause for his failure to have previously raised this

claim. Having determined Mr. Abdulhaseeb cannot establish cause, we need not

address the prejudice inquiry. 9 Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir.

1995). We therefore conclude Mr. Abdulhaseeb has abused the writ with respect

to his ineffective assistance of counsel claim.



II. CONCLUSION

      Because Mr. Abdulhaseeb has abused the writ with respect to each of his

claims, his appeal cannot proceed and we have no need to determine whether Mr.



      9
        We also note Mr. Abdulhaseeb has made no showing of factual
innocence. Consequently, we may not excuse the "cause" requirement in this
case. See McCleskey, 499 U.S. at 495.


                                        -10-
Abdulhaseeb has not made a substantial showing of the denial of a constitutional

right. We hereby deny Mr. Abdulhaseeb a certificate of appealability, and we

DISMISS Mr. Abdulhaseeb's petition for a writ of habeas corpus.



                                      Entered for the Court


                                      WADE BRORBY
                                      United States Circuit Judge




                                       -11-
