                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        October 28, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 MARTIN MORRIS MOSES, SR.,

               Petitioner-Appellant,                     No. 05-5008
          v.                                          (N. D. Oklahoma)
 MIKE MULLIN, *                                  (D.C. No. 00-CV-501-CVE)

               Respondent-Appellee.


                                       ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.



      Martin Morris Moses, Sr., an Oklahoma state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to appeal the district court’s decision

denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. For the

reasons set forth below, we deny Mr. Moses’s application for a COA and dismiss

this appeal.




      *
        In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Mr. Mullin is substituted for Gary E. Gibson as the Respondent in this
action.
                                I. BACKGROUND

      In Tulsa County District Court, a jury convicted Mr. Moses of (1) larceny

of merchandise from a retailer and (2) resisting arrest. In a second prosecution, a

jury convicted Mr. Moses of (3) two counts of assault and battery on a police

officer and (4) speeding. The court sentenced Mr. Moses to twenty years’

imprisonment on the larceny conviction, one year on the resisting arrest

conviction, and twenty years on each of the assault and battery convictions. The

court ordered assault and battery sentences to be served concurrently with one

another but consecutively with the larceny and resisting arrest convictions.

      In the trial on the larceny and resisting arrest charges, Mr. Moses

represented himself throughout the proceedings. In the second trial, Mr. Moses

began by proceeding pro se but then requested counsel midway through the

second day. The court then appointed a public defender to represent Mr. Moses

during the remainder of the trial, which concluded on the third day.

      During the February 16, 1999 sentencing proceedings, Mr. Moses

requested that he be allowed to proceed pro se on appeal. He presented a signed

affidavit, which stated:

             1.    The District Court has explained, and I fully
                   understand, the nature of the crime of which I have
                   been convicted and the severity of the punishment
                   imposed upon me.



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2.   I understand that I have a constitutional right to the
     assistance of an attorney in taking an appeal of the
     judgment against me to the Oklahoma Court of
     Criminal Appeals and to have an attorney appointed
     for me if I am unable to afford one.

3.   I understand the knowledge and experience an
     attorney can provide me.

4.   I understand that the conviction(s) I am appealing,
     if affirmed by the Oklahoma Court of Criminal
     Appeals, might be used to enhance the punishment
     for crimes for which I am convicted of in the future.

5.   I understand that in seeking to take my appeal
     without assistance of an attorney I am assuming sole
     responsibility for perfecting and pursuing my appeal
     in accordance with the Rules of the Oklahoma Court
     of Criminal Appeals, 22 O.S. 1981, Ch. 18, App.,
     and in accordance with the laws of the State of
     Oklahoma. I understand that, if I fail to so perfect
     and pursue my appeal, neither the Oklahoma Court
     of Criminal Appeals not any official of the State of
     Oklahoma is required, or responsible, to correct
     such failure.

6.   I understand that I am precluded from raising, in
     any subsequent proceeding before this Court, any
     issue which was raised or could have been raised in
     my direct appeal. I also understand that I am
     precluded from raising, in any subsequent
     proceeding before any court, these issues which
     could have been raised and any issue concerning the
     effective assistance of counsel in taking my appeal.

7.   I acknowledge that I have not, in any way, been
     compelled or coerced into waiving and relinquishing
     my right to assistance of an attorney in taking my
     appeal. I further acknowledge that I am competent



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                    to make said waiver and relinquishment and that it
                    is made knowingly, intelligently and voluntarily.

             8.     I acknowledge that I have consulted an attorney
                    about my decision to waive an relinquish my right to
                    assistance of an attorney in taking my direct appeal
                    and understand the dangers and requirements I am
                    assuming in representing myself in this matter.

             9.     I acknowledge that I have been fully advised on my
                    right to assistance of an attorney to take my appeal
                    and the consequences of wa[i]ving and relinquishing
                    same.

             10.    I herewith voluntarily waive and relinquish my right
                    to an attorney, either retained or appointed, to
                    represent me on appeal, and request the Oklahoma
                    Court of Criminal Appeals to so find and allow me
                    to represent myself in all further matters relating to
                    this appeal.

Rec. doc. 20, exs. A & B. The Tulsa County District Court granted Mr. Moses’s

request and allowed him to proceed pro se on appeal.

      Mr. Moses commenced the appeals of his convictions and sentences pro se.

However, on September 21, 1999, he filed a motion with the Oklahoma Court of

Criminal Appeals (OCCA) requesting appointment of counsel. He asserted that “I

am a lay person in the law and that combined with the fact that I’m only allowed

two (2), three (3) visits per week to the law library . . . . There’s no way that I

could bring forth any type of appeal briefs with the time allotted.” Rec. doc. 20,

ex. F. He also asserted that he had been unable to obtain certain documents,




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including certified copies of judgments and sentences and the transcript of a

revocation proceeding.

      The OCCA directed Mr. Moses to file his request for counsel in the Tulsa

County District Court. Mr. Moses did so, but the court denied his motion. It

characterized Mr. Moses’s motion as an eleventh-hour request, noting that eight

months had passed since he had requested to proceed pro se and that only ten days

remained before Mr. Moses’s appellate brief was due. The court concluded that

Mr. Moses had waived his right to appellate counsel and had presented

insufficient grounds to rescind the waiver.

      The OCCA then set a final deadline for the filing of Mr. Moses’s opening

brief. Additionally, it found “nothing in the record to dispute the [Tulsa County]

District Court’s findings [that Mr. Moses had waived his right to appellate

counsel].” Id., ex. J. After Mr. Moses failed to submit appellate briefs, the

OCCA dismissed his appeals.

      Mr. Moses filed a 28 U.S.C. § 2254 habeas corpus petition challenging his

convictions. He asserted that (1) his waiver was invalid and, as a result, the state

had deprived him of his constitutional right to appellate counsel; and (2) state

officials had refused to provide him with complete records of two felony

convictions, in violation of his rights under the First, Fifth, Sixth, and Fourteenth

Amendments.



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      The federal district court denied Mr. Moses’s petition. As to the alleged

violation of the right to appellate counsel, the court concluded that “[t]he record .

. . demonstrates convincingly that Petitioner’s waiver of appellate counsel was

made knowingly and intelligently.” Rec. doc. 68, at 8 (Order, filed Jan. 7, 2005).

As to the alleged denial of access to records, the court concluded that the claim

was procedurally barred.



                                  II. DISCUSSION

      In order to obtain a COA, Mr. Moses must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that “‘reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.’” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)). “[A] claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id.

      As the district court observed, under the Antiterrorism and Effective Death

Penalty Act (AEDPA), Mr. Moses is entitled to habeas corpus relief only if the

state court’s adjudication of his claims “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as



                                          -6-
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

“Under the contrary to clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently than this Court has

on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

412-13 (2000). “Under the unreasonable application clause, a federal habeas

court may grant the writ if the state court identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413. Moreover, we must

presume that the state court factual findings are correct. The burden is on Mr.

Moses to rebut that presumption by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1). Applying these standards, we conclude that Mr. Moses is not

entitled to a COA for substantially the same reasons set forth in the district

court’s well-reasoned January 7, 2005 order.

      As to Mr. Moses’s denial of appellate counsel claim, we note that the Tulsa

County District Court made factual findings that Mr. Moses was “literate,

competent, and informed and therefore [could] intelligently waive and relinquish

his right to assistance of an attorney in perfecting/pursuing an appeal to the

[OCCA].” Rec. doc. 21, ex. D. Mr. Moses has failed to rebut this finding with

clear and convincing evidence.



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      Moreover, the Tulsa County District Court’s conclusion that Mr. Moses had

offered insufficient grounds to rescind the waiver was not unreasonable. In light

of his knowing and intelligent waiver, Mr. Moses failed to offer a sufficient

explanation as to why he was unable to prosecute his appeal pro se. See United

States v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir. 1994) (“Once the defendant

has elected either to waive appointed counsel or waive the constitutional right to

defend himself, he does not have an unlimited right to thereafter change his mind

and seek the other path of representation.”).

      As to Mr. Moses’s claim of denial of access to records, we agree with the

district court that he failed to present the claim to the state courts and has failed

to establish either cause and prejudice or a fundamental miscarriage of justice

sufficient to warrant our consideration of it. See Coleman v. Thompson, 501 U.S.

722, 750, (1991); Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998).



                                 III. CONCLUSION

      Accordingly, for substantially the same reasons set forth in the district

court’s order, we DENY Mr. Moses’s application for a COA and DISMISS this

appeal.

                                  Entered for the Court,


                                  Robert H. Henry
                                  Circuit Judge

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