                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         SEP 13 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


CLAUDE MILES, also known as
Sonny Miles,

          Petitioner-Appellant,
                                                        No. 99-5037
                                                 (N. District of Oklahoma)
v.
                                                  (D.C. No. 96-CV-167-E)
RONALD J. CHAMPION,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before TACHA, McKAY, 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 court

therefore orders the case 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       This order and judgment is not binding precedent, except under the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 of 10th Cir. R. 36.3.
       Claude “Sonny” Miles, proceeding      pro se , seeks a certificate of probable

cause so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition.   1
                See 28 U.S.C. § 2253 (1994) (providing that an appeal may not be

taken from the denial of a pre-AEDPA § 2254 habeas petition unless the

petitioner first obtains a certificate of probable cause). Because Miles has failed

to make a “substantial showing of the denial of [a] federal right,” this court

DENIES Miles a certificate of probable cause and       DISMISSES this appeal.       See

Barefoot v. Estelle , 463 U.S. 880, 893 (1983).

       On January 29, 1991, Miles was charged in an information with one count

of unlawful possession of a controlled drug with intent to distribute (“Count I”),

one count of knowingly concealing stolen property (“Count II”), and one count of

unlawful possession of marijuana with intent to distribute (“Count III”). A jury

found Miles guilty on all three counts contained in the information. He was

sentenced to life imprisonment on Count I and Count III and five years



       1
        Although his application purports to seek a certificate of appealability, at
the time Miles filed his § 2254 habeas petition on March 1, 1996, the
Antiterriorism and Effective Death Penalty Act of 1996 (“AEDPA”) had not yet
been enacted and its provisions, therefore, do not apply. See Lindh v. Murphy,
521 U.S. 320, 336 (1997). Therefore, Miles does not need a certificate of
appealability to proceed. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.
1998). To appeal the denial of his pre-AEDPA habeas petition, however, Miles
must obtain a certificate of probable cause under former 28 U.S.C. § 2253. See
id. at 1316 n.1. Consequently, we construe Miles’ application as an Application
for a Certificate of Probable Cause.

                                            -2-
imprisonment on Count II. Miles challenged his conviction and sentence by

filing a timely appeal with the Oklahoma Court of Criminal Appeals (the

“OCCA”). The judgment and sentence were affirmed by the OCCA in a summary

opinion dated December 23, 1994. Miles then filed an application for post-

conviction relief with the state district court. The state district court denied post-

conviction relief and Miles appealed by filing a Petition in Error with the OCCA.

The OCCA affirmed the denial of post-conviction relief on February 8, 1996.

      Miles filed the instant § 2254 Petition for Writ of Habeas Corpus (the

“habeas petition”) with the United States District Court for the Northern District

of Oklahoma on March 1, 1996. In the habeas petition, Miles raised six grounds

for relief: (1) that his due process rights were violated because of the ineffective

assistance he received from his appellate counsel, (2) that he was denied the

opportunity for rehearing by the OCCA as a direct result of the ineffective

assistance he received from his appellate counsel, (3) that his due process rights

were violated when the OCCA issued a summary opinion dismissing his

application for post-conviction relief, (4) that the OCCA’s ruling was contrary to

law, (5) that he was denied a fair trial as a result of prosecutorial misconduct, and

(6) that the sentence imposed exceeded that permissible by law.

      The district court addressed each of the six issues raised in Miles’ habeas

petition. The district court concluded Miles was procedurally barred from


                                          -3-
bringing two of his claims, the procedural misconduct and excessive sentence

claims, because they had not been brought before the OCCA on direct appeal.

The district court concluded that as to these two claims, Miles had failed to show

cause and prejudice for the default or demonstrate that a fundamental miscarriage

of justice would result if his claims were not considered.   See Coleman v.

Thompson , 501 U.S. 722, 724 (1991). The district court also concluded Miles’

remaining four claims were without merit. Specifically, the court found that the

performance of Miles’ appellate attorney did not fall below an objective standard

of reasonableness.    See Strickland v. Washington , 466 U.S. 668, 669 (1984).

Further, the district court concluded Miles’ argument that the issuance of a

summary opinion by the OCCA violated his due process rights lacked merit.      2



Miles’ final claim was based on his assertion that he was convicted based on

evidence obtained in violation of his Fourth and Fourteenth Amendment right to

be free of unreasonable searches and seizure. The district court concluded that

Miles had a full and fair opportunity to litigate this issue in state court and,

therefore, the claim was not cognizable in a federal habeas corpus proceeding.

See Stone v. Powell , 428 U.S. 465, 494 (1976). Consequently, the district court

dismissed Miles’ habeas petition.



       2
        In support of this argument, Miles relied on the dissenting opinion of
Justice Marshall in Smith v. Ohio, 494 U.S. 541, 544 (1990).

                                            -4-
       Miles filed an Application for Certificate of Probable Cause to appeal the

federal district court’s denial of his habeas petition. The district court denied the

request and Miles appealed that denial to this court.

       Miles is not entitled to receive a certificate of probable cause unless he can

make “a substantial showing of the denial of [a] federal right.”     Barefoot , 463

U.S. at 893. Miles can make such a showing by demonstrating the issues raised

are debatable among jurists, a court could resolve the issues differently, or that

the questions presented deserve further proceedings.       See id. at 893 n. 4. Upon

de novo review of Miles’ Application for Certificate of Probable Cause and

Brief, the district court’s Order, and the entire record on appeal, this court

concludes the district court’s resolution of Miles’ claims is not reasonably

debatable, subject to a different resolution on appeal, or deserving of further

proceedings. See id. Consequently, Miles has not made a substantial showing of

the denial of a federal right and is not entitled to a certificate of probable cause.

Accordingly, Miles’ Application for a Certificate of Probable Cause is      DENIED




                                            -5-
for substantially those reasons set out in the district court’s Order dated February

2, 1999, and the appeal is therefore   DISMISSED .

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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