                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                APR 6 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 MOISES W. QUINTANA,

               Petitioner - Appellant,

          v.                                                No. 98-7103
                                                     (D. Ct. No. CV-97-275-B)
 RITA MAXWELL; ATTORNEY                                     (E. D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      This appeal is from an order of the district court adopting the report and

recommendation of the magistrate judge denying a petition brought pursuant to 28


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
U.S.C. § 2254. Petitioner appeals on the ground that the district court erred in

denying relief in this state habeas corpus appeal. We decline to grant a certificate

of appealability.

      Petitioner is an inmate in the custody of the Oklahoma Department of

Corrections. He was convicted in Muskogee County District Court after a plea of

nolo contendere to the charge of first degree rape and second degree rape. He

received a sentence of thirty years, with fifteen years suspended. Petitioner

alleges in this appeal that there was no factual basis for his nolo contendere plea

and that his trial counsel was ineffective. Because petitioner is proceeding pro se

we construe his pleadings liberally. See, e.g., Keeton v. Oklahoma, 32 F.3d 451,

452 (10th Cir. 1994).

      Petitioner alleges that the district court erred in finding that his claim

regarding the lack of factual basis for his nolo contendere plea was procedurally

barred. Petitioner failed to seek to withdraw his guilty plea within the time

allotted by the Oklahoma statute. Further, petitioner did not file a direct appeal.

He has, however, exhausted his state court remedies by raising the issues related

to his nolo contendere plea in his state post-conviction application. The

Oklahoma Court of Criminal Appeals held that this claim was procedurally

barred. We will not consider issues on habeas review that have been defaulted in

state court pursuant to an adequate and independent state procedural rule unless


                                         -2-
the prisoner can show cause and prejudice or a fundamental miscarriage of

justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Hickman v.

Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). Petitioner failed in the district

court, and fails on appeal, to demonstrate cause for his procedural default and

further fails to show prejudice as a result of any violation of federal law or that

there was any fundamental miscarriage of justice. The district court properly

applied the Supreme Court standard holding that federal habeas review of this

claim is barred.

       Plaintiff has further failed to show that, but for alleged errors by trial

counsel, petitioner would not have pled guilty and would have insisted on going

to trial. Thus, petitioner has failed to make the required showing of prejudice

with respect to his claim of ineffective assistance of trial counsel. See Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

       This court has reviewed petitioner’s request for a certificate of

appealability and appellate brief, the district court order, and the entire record on

appeal. That review demonstrates that the district court’s order denying relief is

not deserving of further proceedings, debatable among jurists of reason, or

subject to different resolution on appeal.    See Barefoot v. Estelle , 463 U.S. 880,

893 (1983). Accordingly, petitioner has not made a substantial showing of the

denial of a constitutional right and is not entitled to a certificate of appealability.


                                             -3-
See 28 U.S.C. § 2253(c)(2);   Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996).

This court therefore DENIES petitioner’s request for a certificate of

appealability for substantially those reasons set out in the report and

recommendation of the magistrate judge, and    DISMISSES this appeal.     The

request to proceed in forma pauperis is DENIED.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




                                        -4-
