           UNITED STATES COURT OF APPEALS
Filed 12/13/96
                    TENTH CIRCUIT



 WILLIAM H. COKLEY,

          Petitioner-Appellant,

 v.                                                      No. 96-1130
                                                     (D.C. No. 94-Z-1168)
 LARRY EMERY; GALE NORTON,                                (Colorado)
 Attorney General of the
 State of Colorado,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, KELLY and LUCERO, 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 cause 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       This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
      William H. Cokley filed this action seeking a writ of habeas corpus under

28 U.S.C. § 2254. He contends that he was unconstitutionally held to be an

habitual criminal because the state failed to prove a third prior offense as required

by the Colorado statute. The state court procedurally barred Mr. Cokley from

raising this issue because he didn’t raise it within the Colorado statute of

limitations governing post conviction claims. The district court in the present

action held that Mr. Cokley’s federal habeas claim was procedurally barred

because he failed to establish cause for the default in state court and actual

prejudice as a result of the alleged constitutional violation. The district court

held further that Mr. Cokley had failed to allege facts sufficient to establish a

fundamental miscarriage of justice so as to bring him within the exception to the

cause and prejudice standard.

      The sole issue Mr. Cokley asserts on appeal is that the district court erred

in holding he failed to establish a miscarriage of justice sufficient to avoid the

procedural bar. Mr. Cokley contends he has established his actual innocence of

the charge of being an habitual criminal because “the prosecution failed to sustain

its burden of proving the existence of 3 prior felony convictions.” Appellant’s

Opening Brief at p. 3, ¶ 5. The state correctly points out Mr. Cokley did not

assert in the court below and does not assert here that he did not commit the third

felony he questions, only that the prosecution failed to prove he committed it.


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Thus, the district court was correct in concluding that Mr. Cokley has failed to

meet his burden of establishing actual innocence of the third felony.

      We AFFIRM the judgment of the district court.

                                               ENTERED FOR THE COURT

                                               Stephanie K. Seymour
                                               Chief Judge




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