                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 19 2005
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


BRIAN ASHWORTH,

       Petitioner-Appellant,
                                                        No. 04-6364
v.                                             (Western District of Oklahoma)
                                                 (D.C. No. CV-04-147-L)
MIKE ADDISON, Warden,

       Respondent-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Proceeding pro se, Brian Ashworth seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the habeas petition he filed

pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Ashworth’s motion to proceed in forma pauperis

is granted.

      On January 10, 2003, Ashworth pleaded guilty to one count of lewd

molestation. Pursuant to the terms of a plea agreement, a second charge of lewd

molestation was dismissed. He was sentenced to a thirteen-year term of
imprisonment. Ashworth did not seek to withdraw his guilty plea and he did not

file a direct appeal. He did, however, file a state post-conviction application on

November 3, 2003. Ashworth asserted several ineffective assistance of counsel

claims in addition to a claim that the trial court lacked jurisdiction to accept his

plea because it did not hold a preliminary hearing after a charge was added to the

information. The state district court denied Ashworth’s post-conviction

application, relying on Oklahoma’s procedural default rule. See Okla Stat. tit. 22,

§ 1086. The denial of post-conviction relief was affirmed by the Oklahoma

Court of Criminal Appeals.

      Ashworth filed the instant § 2254 petition on February 12, 2004, raising the

same ineffective assistance and jurisdictional claims raised in his state post-

conviction application. The matter was referred to a magistrate judge who

prepared a Report and Recommendation (“R&R”) recommending that Ashworth’s

petition be denied. The R&R first addressed Ashworth’s assertion that a

jurisdictional claim cannot be subject to procedural default. It concluded,

however, that the right to a preliminary hearing on an amended information can

be waived by the failure to object. See Norton v. State, 43 P.3d 404, 408 (Okla.

Crim. App. 2002). Thus, despite Ashworth’s assertions, his claim did not

implicate the trial court’s jurisdiction and it was procedurally defaulted. The

R&R further concluded that Ashworth had failed to show cause and prejudice to


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excuse the default and had also failed to demonstrate that the failure to review the

merits of the defaulted claim would result in a fundamental miscarriage of justice.

See Bousley v. United States, 523 U.S. 614, 622 (1998). The R&R then concluded

that federal review of Ashworth’s ineffective assistance claims was not barred by

the procedural default. Although it reviewed the claims, it determined that they

lacked merit.

      Ashworth filed timely objections to the R&R and argued, in part, that he

was not given an adequate opportunity to argue the merits of his ineffective

assistance claims. The district court considered Ashworth’s expanded arguments

but concluded that the ineffective assistance claims lacked merit. Accordingly,

the court denied Ashworth’s § 2254 petition.

      This court cannot grant Ashworth a COA unless he can demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Ashworth has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Ashworth is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He


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must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Ashworth’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that

Ashworth is not entitled to a COA. The district court’s resolution of Ashworth’s

claims is not reasonably subject to debate and the claims are not adequate to

deserve further proceedings. Accordingly, Ashworth has not “made a substantial

showing of the denial of a constitutional right” and is not entitled to a COA. 28

U.S.C. § 2253(c)(2).

      This court denies Ashworth’s request for a COA and dismisses this appeal.

                                        Entered for the Court
                                        PATRICK FISHER, Clerk of Court


                                        By
                                                Deputy Clerk




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