                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                JUN 3 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 CHARLES HENRY TYSON,

               Petitioner - Appellant,

          v.                                                No. 98-6470
                                                     (D. Ct. No. 97-CV-276-L)
 BOBBY BOONE,                                               (W.D. Okla.)

               Respondent - Appellee.


                            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 denying petitioner Tyson’s

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

Petitioner seeks a certificate of appealability in this court and alleges that the


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
district court erred when it failed to find constitutional errors related to

ineffective assistance of trial counsel, the information failed to allege elements of

the underlying offense, the state trial court lacked a factual basis for sentencing,

and the trial court failed to hold a hearing to determine petitioner’s competency to

stand trial. We deny a certificate of appealability on all issues.

      Petitioner pled guilty to first degree murder in the state courts of Oklahoma

and was sentenced to life imprisonment. He filed various post-conviction

pleadings and state court collateral attacks prior to filing his 28 U.S.C. § 2254

petition. The magistrate judge’s report and recommendation contains a thorough

review of the proceedings in the state court and the application of the procedural

default rule to these proceedings. We have “held that the failure to raise a claim

of ineffective assistance of counsel on direct review will not preclude federal

review of that claim,” notwithstanding Oklahoma’s procedural default rule, when

petitioner raises it in his application for post-conviction relief. Brewer v.

Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995) (citing Brecheen v. Reynolds, 41

F.3d 1343, 1363-64 (10th Cir. 1994)). Here, the ineffective assistance of counsel

exception to the procedural default rule does not apply because petitioner failed to

raise the issue on direct appeal and failed to raise it in his first application for

post-conviction relief. Thus, petitioner’s ineffective assistance of counsel claim

cannot serve as cause for his default in this case.


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      The magistrate judge recommended denying the petition for a writ of

habeas corpus and certificate of appealability. In his objections to the

magistrate’s report, petitioner contended that the magistrate judge erred by failing

to hold an evidentiary hearing on Mr. Tyson’s ineffective assistance of counsel

claim. We agree with the district court that the magistrate judge correctly

determined that the petition should be denied. Although petitioner attempted to

put forward affidavits showing ineffective assistance of counsel through a failure

to notify petitioner of the right to appellate review, the district court noted that

the record contains no evidence that calls into question petitioner’s competency at

the time of the offense or at the time he entered his guilty plea.

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

appealability, his 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 n.4

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

a federal right and is not entitled to a certificate of appealability. We deny

petitioner’s request for a certificate of appealability for substantially the reasons

set out in the report and recommendation of the magistrate judge. We dismiss the

appeal.


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ENTERED FOR THE COURT,



Deanell Reece Tacha
Circuit Judge




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