                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       November 8, 2005
                                  TENTH CIRCUIT
                                                                          Clerk of Court

 HOWARD PATRICK PHILLIPS,

        Petitioner - Appellant,
                                                        No. 05-5070
 vs.                                             (D.C. No. 01-CV-00401-E)
                                                        (N.D. Okla.)
 DAYTON J. POPPELL; STATE OF
 OKLAHOMA,

        Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Howard Patrick Phillips, a state inmate appearing pro

se, seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying relief on his petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. As Mr. Phillips has failed to make a “substantial showing of

the denial of a constitutional right” as required by U.S.C. § 2253(c)(2), we deny

his request and dismiss the appeal.

       Mr. Phillips’ appeal concerns a consolidated criminal trial. In Case No.

CF-96-823, Mr. Phillips was convicted by a jury in Oklahoma state court of four

counts of knowingly withholding stolen property, after former conviction of two
or more prior felonies in violation of Okla. Stat. tit. 21, §1713 (“Case 1”). In

Case No. CF-96-824, Mr. Phillips was convicted by a jury on two counts of

possession of a stolen vehicle, after former conviction of two or more felonies in

violation of Okla. Stat. tit. 47, § 4-103 (“Case 2”). In Case 1, he was sentenced

to concurrent sentences of 20, 20, 20, and 35 years. In Case 2, he was sentenced

to consecutive prison terms of 25 and 30 years. Further, the sentences entered in

Case 1 were to be served consecutively to the sentences in Case 2. As such, Mr.

Phillips’ sentences total 90 years imprisonment. On direct appeal on March 31,

2000, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. R. Doc. 5,

Ex. A. The United States Supreme Court denied Mr. Phillips’ certiorari petition

on January 8, 2001. Phillips v. Oklahoma, 531 U.S. 1088 (2001). It does not

appear that Mr. Phillips pursued any state post-conviction relief.

      On May 31, 2001, Mr. Phillips filed a counseled petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court asserting

three claims, all of which were raised on direct appeal: (1) that he was denied a

fair and impartial jury in violation of the Sixth and Fourteenth Amendments to the

United States Constitution; (2) that his multiple convictions violated his privilege

to be free from Double Jeopardy in violation of the United States Constitution;

and (3) that he was denied the right to present mitigating evidence to the jury in

violation of the Fourteenth Amendment. R. Doc. 1. On September 6, 2002, Mr.


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Phillips filed a pro se supplemental brief apparently containing claims of

insufficient evidence and ineffective assistance of counsel. On July 23, 2003, Mr.

Phillips filed a pro se motion to dismiss requesting that the court dismiss without

prejudice as well as hold the matter while he exhausted claims of ineffective

assistance of trial and appellate counsel. See R. Doc. 9 & Doc. Entry 6 & 8.

After allowing a twenty day period to cure, the district court struck these pro se

pleadings because it interpreted Fed. R. Civ. P. 11(a) as not permitting a litigant

to sign pleadings when represented. Docs. 9 (July 28, 2003 Order allowing for

cure) & 11 (April 2, 2004 Order striking). Mr. Phillips’ counsel was allowed to

withdraw, 1 the court apparently declined to appoint another attorney, and Mr.

Phillips entered an appearance pro se. Id.; Docs. 12 & 13. On April 21, 2005,

Mr. Phillips sought mandamus from this court to require the district judge to hear

and decide his habeas corpus petition. On May 11, 2005, the district court


      1
          Counsel explained that he did not agree with Mr. Phillips’ pro se actions
because they raised unexhausted claims, and any return to state court would not
toll the one-year federal limitation period contained in 28 U.S.C. § 2244(d). Doc.
10 at 2. Counsel plainly was concerned that the federal petition would be
dismissed as a mixed petition, and all claims would be time barred given that
federal habeas proceedings do not toll the one-year limitation period. See Duncan
v. Walker, 533 U.S. 167, 181-182 (2001). Doc. 10 at 2 n.2. Counsel also
indicated that Mr. Phillips (through counsel) believed it to be in his best interest
to strike the pleadings so that the claims that were properly raised could be heard.
Id. at 2-3. Counsel sought to withdraw because of a potential conflict with any
ineffective assistance of counsel claims (he had worked on the direct appeal
research), and he no longer was in private practice. Id. at 3. Counsel requested
that the Federal Public Defender be appointed to represent Mr. Phillips.

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entered judgment denying the petition, and this court subsequently denied the

mandamus petition as moot.

      In seeking a COA, Mr. Phillips now reasserts the same three counseled

claims raised before the district court. In addition, Mr. Phillips raises several

issues that were not addressed by the district court: (1) ineffective assistance of

counsel in violation of the Sixth Amendment; (2) that he was sentenced in

violation of Blakely v. Washington, 542 U.S. 296 (2004); and (3) that he was

prejudiced by the length of time his petition for habeas corpus was pending before

the district court. COA Appl. at 5.

      In order for this court to grant a COA, Mr. Phillips must make “a

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

2253(c)(2). Where, as here, the district court has rejected a habeas petitioner’s

constitutional claims on the merits, the petitioner must demonstrate that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      The counseled claims before the district court were presented to the OCCA

and were denied by that court in a summary opinion that contained a short

discussion of each claim. R. Doc. 5, Ex. A. As such, the district court could not

properly issue a writ of habeas corpus unless it found that the state court

adjudication resulted in a decision that “was contrary to, or involved an


                                         -4-
unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). Further, the fact that the OCCA denied

relief to Mr. Phillips in a summary opinion has no effect on the deference owed to

the state court’s result. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.

2004). It is against these standards that the district court’s denial of Mr. Phillips’

petition must be assessed.

      Having carefully reviewed Mr. Phillips’ arguments, the OCCA summary

opinion, and the district court’s order, we do not think that the district court’s

resolution of these issues is fairly debatable. R. Doc. 18. The additional claims

now raised by Mr. Phillips were not raised in his initial habeas petition and are

considered waived. Wares v. Simmons, 392 F.3d 1141, 1143 (10th Cir. 2004).

To the extent that Mr. Phillips sought to raise such claims at the district court by

his September 6, 2002 filing, counsel plainly recognized that they were not only

unexhausted, but beyond the one-year limitation period from the date of denial of

certiorari by the Supreme Court (January 8, 2001) following his direct appeal. 28

U.S.C. § 2244(d); Doc. 10 at 2-3. There is no right to counsel in collateral

proceedings and it was within the district court’s discretion to decline to appoint

counsel. Swazo v. Wyoming Dept. of Corr. State Penitentiary Warden, 23 F.3d

332, 333 (10th Cir. 1994).


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We DENY a COA and DISMISS the appeal.

                          Entered for the Court



                          Paul J. Kelly, Jr.
                          Circuit Judge




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