                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 27, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 ANDRE LAJUAN MARSHALL,

                 Petitioner-Appellant,                    No. 09-5052
          v.                                      Northern District of Oklahoma
 JUSTIN JONES, Director,                       (D.C. No. 4:05-CV-00033-TCK-PJC)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Andre Lajuan Marshall, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Marshall has failed to

make “a substantial showing of the denial of a constitutional right,” we deny his

request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                         Background

      On July 8, 2001, police officers stopped a vehicle in Tulsa, Oklahoma,

because the vehicle’s driver was not wearing a seatbelt. After finding marijuana


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
on the floorboard of the vehicle, the police arrested the car’s driver and his

passenger, and began a search of the vehicle. A crowd of onlookers soon

gathered, including Andre Marshall. At some point, the police officers heard

gunshots fired and exchanged gunfire with the shooter, who attempted to flee.

Mr. Marshall was shot twice by the police during this altercation. A witness saw

him discard clothing and attempt to seek shelter in various homes and a car in the

neighborhood. When one area resident returned home to discover Mr. Marshall

lying on his couch, uninvited and bleeding, wearing only boxer shorts and socks,

he flagged down a police car and directed officers to Mr. Marshall. Although Mr.

Marshall claimed to be an innocent victim, the police concluded that he was the

shooter who had fired at the officers. Mr. Marshall was found guilty by a jury on

five counts, including two counts of shooting with intent to kill, and sentenced to

thirty years’ imprisonment.

      Mr. Marshall appealed to the Oklahoma Court of Criminal Appeals (OCCA)

and asserted eight propositions of error. The OCCA found merit to two of Mr.

Marshall’s claims, and reversed his convictions on Assault with a Dangerous

Weapon and Entering a Building with Unlawful Intent. The OCCA rejected the

remainder of Mr. Marshall’s claims on the merits, leaving intact his convictions

for shooting with intent to kill, as well as his sentence. Mr. Marshall then filed

an application for post-conviction relief in state district court, alleging that his

appellate counsel was ineffective for failing to raise claims that his trial counsel

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was ineffective. After the state district court denied relief, Mr. Marshall appealed

to the OCCA. The OCCA also rejected Mr. Marshall’s claims. It first noted that

“[a]ll issues that could have and should have been previously raised are waived

and may not be the basis of a post-conviction application.” R. 232. It then

explained that Mr. Marshall could not avoid this procedural bar merely by arguing

that his counsel failed to advance certain claims on appeal. The OCCA concluded

that Mr. Marshall had failed to demonstrate that his counsel’s performance was

deficient, because he could not show that the outcome of his trial or appeal would

have been different had his appellate counsel raised these claims. Id. Finally, the

OCCA rejected any attempt by Mr. Marshall to overcome the procedural bar on

the basis of a factual innocence showing. Id.

      Mr. Marshall next filed an application for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254 in the United States District Court for the Northern District

of Oklahoma. In his brief, he asserted seven grounds for relief: (1) the evidence

was insufficient to sustain his conviction for shooting with intent to kill; (2) his

conviction for possession of a firearm after a former felony conviction violated

double jeopardy; (3) a police officer’s testimony about the crowd of onlookers

wearing “gang colors” denied Mr. Marshall a fair trial; (4) the trial court’s failure

to instruct the jury that under Oklahoma law, Mr. Marshall would have to serve

85% of his sentence before becoming eligible for parole; (5) prosecutorial

misconduct denied Mr. Marshall a fair trial; (6) aggregate error warranted

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reversal of Mr. Marshall’s conviction or modification of his sentence; (7) Mr.

Marshall was denied effective assistance of counsel.

      In a thorough and well-reasoned analysis, the district court rejected Mr.

Marshall’s first six claims on the merits and his ineffective assistance claim as

procedurally barred. The district court further concluded that Mr. Marshall could

show neither “cause and prejudice” such as would excuse his procedural default,

nor that a fundamental miscarriage of justice would result from application of the

procedural bar. Dist. Ct. 21–22. Mr. Marshall now seeks a COA enabling him to

proceed further on appeal.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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) (internal

quotation marks omitted). Although Mr. Marshall need not demonstrate that his

appeal will succeed to be entitled to a COA, he must “prove something more than




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the absence of frivolity or the existence of mere good faith.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted).

      Having undertaken a review of Mr. Marshall’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes he is not entitled to a COA. We have little to add to the district court’s

able discussion of the issues raised in Mr. Marshall’s § 2254 motion. Because the

district court’s resolution of Mr. Marshall’s habeas petition is not reasonably

subject to debate, his claims are not adequate to deserve further proceedings.

                                     Conclusion

      Accordingly, we DENY Mr. Marshall’s request for a COA and DISMISS

this appeal.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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