                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     October 12, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 M ICHA EL O . WA FFO RD ,

              Petitioner-A ppellant,                   No. 06-6082
       v.                                           (W . D. Oklahoma)
 EDW ARD EVANS, W arden,                             (CIV-05-998-R)

             Respondent-Appellee.



                                       OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      M ichael O. W afford, an O klahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s order dismissing

his 28 U.S.C. § 2254 petition for a w rit of habeas corpus. The magistrate judge’s

report and recommendation suggested dismissal of two of the ten claims because

they were procedurally defaulted. It recommended denial of habeas relief on the

remaining claims on grounds that the state court’s decision was not contrary to or

an unreasonable application of clearly established federal law. The federal

district court adopted the report and recommendation, denied the habeas petition,

and denied M r. W afford’s request to proceed in form a pauperis (“IFP”). Based

substantially upon the reasons set forth in the magistrate judge’s report and

recommendation, we deny M r. W afford’s request for a COA, deny his request to
proceed IFP, and dismiss this matter.

                              I. B ACKGROUND

      In 2002, law enforcement officers in Oklahoma County, Oklahoma

executed a search warrant at an apartment where an informant had previously

made a controlled purchase of cocaine from M r. W afford. Inside the apartment,

officers found M r. W afford, along with cocaine, marijuana, and a loaded revolver.

      A state jury in Oklahoma County convicted M r. W afford of (1) trafficking

in illegal drugs (cocaine), in violation of Okla. Stat. tit. 63 § 2-415; (2)

possession of a firearm while committing a felony, in violation of Okla. Stat. tit.

21, § 1287; (3) possession of a controlled substance (marijuana) w ith intent to

distribute, in violation of Okla. Stat. tit. 63, § 2-401; and (4) concealing stolen

property, in violation of Okla. Stat. tit. 21, § 1713. Previously, M r. W afford had

been convicted of a felony.

      The state court sentenced him to consecutive terms of imprisonment of

thirty years, ten years, five years, and five years, respectively. The Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed the first three convictions and

reversed the conviction for concealing stolen property. M r. W afford filed an

application for post-conviction relief in state district court; the district court

denied the application, and the OCCA affirmed.

      M r. W afford subsequently raised ten claims in a federal § 2254 habeas

petition: (1) he was denied effective assistance of trial counsel; (2) he was denied

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effective assistance of appellate counsel based on appellate counsel’s failure to

raise a claim of ineffective assistance of trial counsel; (3) he was denied due

process during sentencing because he did not knowingly stipulate to a prior

conviction used to enhance his sentence; (4) trial evidence was insufficient to

support the trafficking and possession convictions; (5) the state should not have

“carve[d] two crimes from the presence of one gun,” Rec. doc. 1, at 12; (6) an

“evidentiary harpoon” deprived him of a fair trial, id. at 13; (7) the trial court

admitted evidence that was more prejudicial than probative; (8) and (9) the trial

court erred by admitting evidence of other crimes; and (10) cumulative errors

denied him a fair trial.

                                  II. D ISC USSIO N

      “[U]ntil a COA has been issued, federal courts of appeals lack jurisdiction

to rule on the merits of appeals for habeas petitioners.” M iller-El v. Cockrell, 537

U.S. 322, 336 (2003). A COA may be granted “only if the applicant has made a

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

2253(c)(2). M r. W afford may satisfy this showing by demonstrating that

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

claims debatable or wrong, or, if the ruling was procedural, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. M iller-El, 537 U.S. at 336.

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          The magistrate judge recommended that claims one (ineffective assistance

of trial counsel) and three (denial of due process during the sentencing hearing)

should be dismissed due to procedural default. The magistrate judge reasoned

that M r. W afford had not raised these claims in his direct appeal, and the OCCA

concluded in post-conviction review that he had procedurally defaulted on these

claims.

      W e agree with the magistrate judge that the OCCA’s procedural bar rule

provided an independent and adequate basis not to reach the merits of either

claim. As to these claims, M r. W afford’s allegations may be adjudicated on the

trial record, and M r. W afford had different counsel at trial and on direct appeal.

See English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998) (concluding that

Oklahoma’s procedural bar rule can preclude federal habeas review of a claim of

ineffective assistance of trial counsel when (1) trial and appellate counsel differ,

and (2) the trial record alone resolves the claim).

      On habeas review, we will not review claims defaulted in state court on an

independent and adequate state procedural ground absent a showing that: (1) a

cause outside the control of the petitioner caused the default, and the petitioner

has suffered prejudice, or (2) a fundamental miscarriage of justice would occur

absent review. Bousley v. United States, 523 U .S. 614, 622 (1998). W e also

agree with the magistrate judge that M r. W afford cannot establish cause for his

procedural default on claims one and three, and that his appellate counsel was not

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ineffective for failing to raise claims one and three on direct appeal. M r. W afford

has not argued that fundamental miscarriage of justice would result. Therefore,

claims one and three are barred from federal habeas review.

      W ith respect to claim two, the OCCA rejected M r. W afford’s ineffective-

assistance-of-appellate-counsel claim, and he has failed under this claim to make

a substantial showing of the denial of any constitutional right under Strickland v.

Washington, 466 U.S. 668 (1984).

      The O CCA rejected on the merits claims four through ten in M r. W afford’s

habeas petition. W e therefore must determine whether the OCCA’s adjudication

of these claims was “contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the Untied

States” or “resulted in a decision that was based upon an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

      As to M r. W afford’s fourth claim, that evidence was insufficient to sustain

two convictions, we conclude that the OCCA reasonably held that there was

sufficient evidence in the record for a rational jury to find the essential elements

of the trafficking and weapons possession offenses beyond a reasonable doubt.

For the fifth claim, M r. W afford maintains that the State should not have

“carve[d] two crimes from one presence of a gun.” Rec. doc 1, at 12. M r.

W afford obtained relief on this claim in his direct appeal to the OCCA and

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therefore cannot receive habeas relief now for the same claim.

      As to the alleged evidentiary trial errors in claims six through nine, these

alleged errors were not so “grossly prejudicial [that they] fatally infected the trial

and denied the fundamental fairness that is the essence of due process.” Fox v.

Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotation marks omitted).

In light of the strong evidence support M r. W afford’s guilt, the OCCA’s rejection

of these claims was reasonable. M oreover, M r. W afford has failed to make a

substantial showing of the denial of a constitutional right. W e similarly conclude

that M r. W afford’s tenth claim–cumulative error–does not satisfy the standard for

granting a C OA .

      W e have reviewed M r. W afford’s request for a COA, the m agistrate judge’s

report and recommendation, the district court’s orders, and the record on appeal.

For substantially the same reasons set forth by the magistrate judge, we conclude

that M r. W afford is not entitled to a COA. The magistrate judge’s report and

recommendation reflects a careful analysis of the record and is supported by

applicable law . Because jurists of reason would not find the district court’s

conclusions debatable, we DEN Y M r. W afford’s request for a CO A and DISM ISS

this matter. W e also DENY his request to proceed IFP.

                                               Entered for the Court,

                                               Robert H. Henry
                                               Circuit Judge



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