                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 27 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 MARCUS R. MILLER,

          Petitioner-Appellant,

 v.                                                        No. 99-5164
                                                           (N.D. Okla.)
 KENNETH KLINGLER, Warden,                          (D.Ct. No. 97-CV-287-BU)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Marcus R. Miller, a state inmate appearing pro se, appeals the


      *
          This order and judgment is not binding precedent except under the doctrines of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.
district court’s decision denying his request for a certificate of appealability and

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We

deny Mr. Miller’s application for a certificate of appealability and dismiss his

appeal.



      A state trial court sentenced Mr. Miller to fifty years in prison following

his conviction for unlawful possession of a controlled dangerous substance after

former convictions of two or more felonies. Mr. Miller unsuccessfully filed a

direct appeal and later unsuccessfully sought post-conviction relief on claims he

failed to raise in his direct appeal. The Oklahoma Court of Criminal Appeals

denied relief, based in part on a determination Mr. Miller’s claims were

procedurally barred by his failure to raise them on direct appeal.



      Unsuccessful in state court, Mr. Miller filed his federal habeas petition,

alleging: (1) denial of a full and fair hearing because the “pretexual stop” of his

vehicle violated the Fourth Amendment; (2) inconsistent and arbitrary application

of Oklahoma’s procedural bar or default rule; (3) erroneous use of “presumed not

guilty” burden of proof jury instructions; (4) failure to retroactively apply Flores

v. State, 896 P.2d 558 (Okla. Crim. App.), cert. denied, 516 U.S. 1002 (1995), in




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conjunction with these erroneous jury instructions; 1 and (5) ineffective assistance

of both trial and appellate counsel in failing to raise the Flores issue concerning

these jury instructions.



       In an exceedingly comprehensive order, the district court denied Mr.

Miller’s petition. Applying the controlling Supreme Court and Tenth Circuit

authority, the district court determined Mr. Miller procedurally defaulted his

Flores and ineffective assistance of trial counsel claims because he never raised

them in his direct appeal or made the requisite showing of cause and prejudice for

failing to raise them. Specifically, the district court determined the Oklahoma

procedural default rule was an independent and adequate state ground barring

review of the issues Mr. Miller did not raise on direct appeal. As to the

ineffective assistance of counsel issue, the district court rejected Mr. Miller’s

attempt to show “cause” for failing to raise the ineffectiveness of his trial counsel



       1
          As the district court described, “[i]n Flores, the Oklahoma Court of Criminal
Appeals held that a trial judge’s deviation from the uniform jury instructions regarding
the presumption of innocence and the state’s burden of proof when the jury was deciding
the guilt or innocence of a defendant was reversible error. 896 P.2d at 562.” In this case,
the Oklahoma Court of Criminal Appeals determined no retroactive application of Flores
applied because “Flores does not announce a new rule, or even implicate the possibility
of retroactive application of such rules, because its result was dictated by precedent
existing at the time Flores’ conviction became final and at the time [Mr. Miller’s]
conviction became final.” (Emphasis in original.)


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by claiming his appellate counsel on direct appeal acted ineffectively by failing to

raise the issue. The district court determined neither of Mr. Miller’s counsel – at

trial or on direct appeal – acted ineffectively in failing to raise the Flores issue

because the Flores decision was issued a year after Mr. Miller’s direct appeal was

decided. In addition to determining Mr. Miller procedurally defaulted his

ineffective assistance of trial counsel claim, the district court also found Mr.

Miller made only a conclusory statement of innocence, rather than the requisite

“colorable showing of actual innocence sufficient to fall within the fundamental

miscarriage of justice exception.”



      Having disposed of Mr. Miller’s procedurally defaulted claims, the district

court next turned to the two claims Mr. Miller did not procedurally default. In so

doing, the district court determined Mr. Miller received a full and fair opportunity

to litigate his Fourth Amendment alleged pretextual stop claim in state court. In

addition, the district court held the state court’s decision on this issue was not

contrary to and did not involve an unreasonable application of clearly established

federal law as determined by the Supreme Court, or based on an unreasonable

determination of the facts in light of the evidence presented in state court. The

court reiterated its conclusion Mr. Miller’s appellate counsel did not act

ineffectively in failing to raise the Flores claim on direct appeal. In so holding,


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the court again pointed out the Flores decision was issued a full year after Mr.

Miller’s conviction was affirmed on direct appeal. The court held appellate

counsel did not need to advance every argument on appeal urged by Mr. Miller or

anticipate appellate issues contained in decisions yet to be issued. The district

court concluded “the Oklahoma Court of Criminal Appeals’ rejection of [Mr.

Miller’s] ineffective assistance of counsel claims was entirely consistent with

Supreme Court precedent.”



      On appeal, Mr. Miller advances the following arguments to support his

application for a certificate of appealability:

      (1) The State and Federal District Court’s decision was contrary to
      clearly established Federal Law as determined by the Supreme Court
      of the [United States]. (2) The Oklahoma Procedural Bar rule is not
      Independent and Adequate. (3) The Northern District Court’s Order
      was contrary to Appellant’s “Actual Innocence” claim. (4) The
      Northern District Court Abused its discretion, in not appointing
Counsel to represent the Appellant. (5) The District Court abused [its] discretion
by not addressing Appellant’s ‘NOVELNESS’ of the claim issue even though
Appellant raised it in his brief.

In addition to these issues, Mr. Miller also contends the district court erred in

refusing to hold an evidentiary hearing to develop the factual basis for his

ineffective assistance of counsel and innocence claims.



      “[W]e review the district court’s factual findings under a clearly erroneous


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standard, and its legal conclusions de novo.” Rogers v. Gibson, 173 F.3d 1278,

1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). We also review de

novo Mr. Miller’s ineffective assistance of counsel claims. United States v.

Prows, 118 F.3d 686, 691 (10th Cir. 1997).

      We may not grant habeas relief unless the state court’s decision was:
      “(1) ... contrary to, or involved an unreasonable application of,
      clearly established federal law, ... or (2) resulted in a decision ...
      based on an unreasonable determination of the facts in light of the
      evidence presented in the State court proceeding.”

      Rogers, 173 F.3d at 1282 (quoting 28 U.S.C. § 2254(d)(1) & (2)).



      Applying these standards, we have carefully reviewed the record and agree

with the district court’s decision. Because the district court provided a

comprehensive, well-reasoned analysis supporting its decision, we find it

unnecessary to reiterate the same analysis here. In sum, Mr. Miller fails to show

the district court’s decision is in error or that any of the adverse state decisions

against him are in violation of clearly established federal law. We also reject Mr.

Miller’s conclusory statement “[t]he Oklahoma Procedural Bar rule is not

Independent and Adequate.” On the contrary, we have held Oklahoma law,

denying post-conviction relief on defaulted claims which could have been raised

on direct appeal, provides an independent and adequate state ground permitting us

to refuse to review such claims. See Odum v. Boone, 62 F.3d 327, 331 (10th Cir.


                                           -6-
1995). This court will not perform a habeas review on issues defaulted in state

court on independent and adequate state procedural grounds, unless Mr. Miller

demonstrates “cause and prejudice” or “a fundamental miscarriage of justice.”

Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (relying on Coleman v.

Thompson, 501 U.S. 722, 749-50 (1991)).



      We next address Mr. Miller’s claim the district court erred in failing to

grant him an evidentiary hearing on his ineffective assistance of counsel and

innocence claims. We review the district court’s denial of an evidentiary hearing

under an abuse of discretion standard. Lasiter v. Thomas, 89 F.3d 699, 702 (10th

Cir.), cert. denied, 519 U.S. 998 (1996). The district court is required to hold an

evidentiary hearing in a habeas case only when “the evidence sought to be

introduced ... [is] material to the issue in question and ... [was] inadequately

developed in state court for reasons not attributable to [Mr. Miller’s] inexcusable

neglect.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1536 (10th Cir.

1994). Mr. Miller’s conclusory allegations of disputed facts are insufficient to

show the evidence was inadequately developed in state court or that the district

court abused its discretion in not granting an evidentiary hearing.



      With respect to Mr. Miller’s claim the district court erred in not appointing


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him counsel, we have stated “there is no constitutional right to counsel beyond the

appeal of a criminal conviction, and that generally appointment of counsel in a

§ 2254 proceeding is left to the court’s discretion.” Swazo v. Wyoming Dep’t of

Corrections, 23 F.3d 332, 333 (10th Cir. 1994). Our review of the record

establishes the district court did not abuse its discretion by failing to appoint Mr.

Miller counsel.



      Finally, we reject Mr. Miller’s summary claim the district court abused its

discretion by not addressing the “novelness” of his claims. Regardless of the

novelty of Mr. Miller’s pro se arguments, the district court properly rejected them

and was not required to address Mr. Miller’s conclusory assertions concerning

their novelty. Cf. Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).



      Under the circumstances presented, we conclude Mr. Miller fails to make a

substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). Thus, for substantially the same reasons articulated by the district




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court in its August 3, 1999 Order, and the reasons announced here, we deny Mr.

Miller’s request for a certificate of appealability and DISMISS his appeal.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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