                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          October 4, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court


CARL RAY HOLMES,

       Petitioner-Appellant,
                                                        No. 05-5014
v.                                             (Northern District of Oklahoma)
                                                 (D.C. No. 01-CV-898-EA)
REGINALD HINES, Warden,

       Respondent-Appellee.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Proceeding pro se, Carl Ray Holmes seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Holmes has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      After a jury trial, Holmes was convicted, inter alia, of unlawful

manufacture of a controlled drug after former conviction of one or more felonies,
in violation of Okla. Stat. tit. 63, § 2-401, and unlawful possession of a controlled

drug with intent to distribute after former conviction of one or more felonies, in

violation of Okla. Stat. tit. 63, § 2-401. Holmes appealed his convictions, raising

the following seven arguments: (1) the trial court improperly allowed the

introduction of a prior conviction and other-crimes evidence during the guilt

phase of the trial, (2) his right to be free from double jeopardy was violated, (3)

he was denied a fair trial due to Brady 1 violations, (4) the trial court erroneously

admitted statements he made to the police after he had invoked his Miranda

rights, (5) a search of his property was conducted in violation of the Fourth

Amendment, (6) his arrest was unlawful, and (7) the evidence was insufficient to

support the convictions. The Oklahoma Court of Criminal Appeals (“OCCA”)

considered Holmes’ arguments, but affirmed the convictions for unlawful

manufacture of a controlled drug and unlawful possession of a controlled drug

with intent to distribute. 2

       Proceeding pro se, Holmes then filed an application for post-conviction

relief in Oklahoma state court. In his post-conviction application, Holmes raised

the following issues: (1) his two convictions violate prohibitions on double


       1
           Brady v. Maryland, 373 U.S. 83 (1963).
       2
        Holmes’ conviction for unlawful possession of marijuana was reversed by
the Oklahoma Court of Criminal Appeals. That ruling is not relevant to the issues
raised in Holmes’ § 2254 application.

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jeopardy, (2) his home was searched in violation of the Fourth Amendment, (3) he

was illegally seized, (4) there was insufficient evidence and proof that his prior

convictions were final, and (5) he was denied the effective assistance of trial

counsel. He also filed a motion seeking to amend his state post-conviction

application. The state district court denied both the motion to amend and

Holmes’ application for post-conviction relief. The OCCA affirmed the denial of

post-conviction relief in an unpublished order, concluding that review of the

issues Holmes had raised on direct appeal was barred by the doctrine of res

judicata and that the issues not raised on direct appeal were waived. See Webb v.

State, 835 P.2d 115, 116 (Okla. 1992); Okla. Stat. tit. 22, § 1086.

      Holmes filed the instant § 2254 habeas application on November 7, 2001

and filed an amended application on February 28, 2002. In his amended

application, Holmes raised all seven issues he presented to the OCCA on direct

appeal together with the ineffective assistance of trial counsel claim that he raised

in his state post-conviction application. He also raised three additional claims:

(1) the OCCA’s decision on his double jeopardy claim violated his right to equal

protection of law, (2) he was denied the effective assistance of appellate counsel,

and (3) Oklahoma’s methamphetamine statute is unconstitutionally vague.

      The district court addressed each of Holmes’ claims. The court first

concluded that review of Holmes’ Fourth Amendment claim was barred by Stone


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v. Powell, 428 U.S. 465, 494 (1976), because Holmes had a full and fair

opportunity to litigate that claim in state court. The court also concluded that

Holmes’ claims of error based on the trial court’s evidentiary rulings involved

only allegations of state law error and, thus, were not cognizable in a federal

habeas corpus proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

However, to the extent those claims also implicated Holmes’ federal

constitutional rights, the court concluded that Holmes was not entitled to relief

because, even assuming error, Holmes failed to demonstrate that his trial was

rendered fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637,

642-48 (1974); Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002).

      The district court then reviewed the constitutional claims that were

previously adjudicated by the Oklahoma state courts. Applying the standard set

forth in the Antiterrorism and Effective Death Penalty Act, the district court

concluded that the state courts’ adjudication of those claims was not contrary to,

nor an unreasonable application of clearly established federal law. 28 U.S.C. §

2254(d). Finally, the district court concluded that Holmes’ claims of ineffective

assistance of trial counsel and the claims raised for the first time in his federal §

2254 application were procedurally barred because those claims were




                                           -4-
procedurally defaulted in Oklahoma state court. 3 The district court determined

that Holmes failed to show cause for the default and actual prejudice or that the

failure to review his claims would result in a fundamental miscarriage of justice.

See Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Edwards v.

Carpenter, 529 U.S. 446, 451-52 (2000) (holding that an unexhausted claim that

appellate counsel provided ineffective assistance cannot serve as cause to

overcome a procedural bar).

      This court cannot grant Holmes a COA unless he can demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Holmes has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003). Holmes is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He




      3
        Even assuming, without deciding, that the district court incorrectly
concluded that Holmes’ ineffective-assistance-of-trial-counsel claim was
procedurally barred, Holmes has wholly failed to demonstrate that the merits of
that claim are “adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

                                         -5-
must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Holmes’ application for a COA and appellate brief,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that Holmes

is not entitled to a COA. The district court’s resolution of Holmes’ claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Accordingly, Holmes has not “made a substantial showing of the

denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. §

2253(c)(2).

      This court denies Holmes’ request for a COA and dismisses this appeal.

                                        Entered for the Court
                                        CLERK, COURT OF APPEALS


                                        By
                                                Deputy Clerk




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