                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 6, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 JEREMIAH D. JAMIESON,

              Petitioner-Appellant,
                                                        No. 11-6139
 v.                                              (D.C. No. 5:10-cv-01176-M)
                                                        (W.D. Okla.)
 JUSTIN JONES, Director,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Jeremiah Jamieson is a prisoner in the custody of the State of Oklahoma.

Proceeding pro se, 1 he seeks a Certificate of Appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C § 2254 petition for a writ of habeas corpus.


      *
          This Order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

       After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Jamieson is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
We deny his request for a COA and dismiss this appeal.

                                  I. Background

      Mr. Jamieson was charged with first degree murder in Oklahoma state court

on March 30, 2007. Mr. Jamieson entered a “blind” plea of guilty to the charge in

2008. At the plea hearing, “[t]he record demonstrates that [he] was advised of

and admitted that he understood the rights he was waiving by entering the plea

and the possible punishment for his offense.” R., Vol. 1, at 370 (Magistrate

Judge’s Report and Recommendation, dated Apr. 5, 2011). Mr. Jamieson was

sentenced on April 3, 2008, to a term of imprisonment of life with the possibility

of parole, effectively requiring him to serve slightly over thirty-eight years before

becoming eligible for parole consideration.

      In April 2008, he filed a motion seeking to withdraw his plea of guilty on

the grounds that it was not entered knowingly and voluntarily because he

assumed, based upon his attorney’s alleged representations, that he would be

given, at the most, a fifteen-year sentence due to the court’s lenient treatment of

another defendant in a similar case. The court denied Mr. Jamieson’s motion to

withdraw, and he filed a petition for a writ of certiorari with the Oklahoma Court

of Criminal Appeals (“OCCA”), raising the ground again that his plea was not

made knowingly and voluntarily. The OCCA denied his petition, finding that his

plea was “knowing, intelligent and voluntary.” R., Vol. 1, at 44 (Summ. Op. Den.

Cert., filed Apr. 15, 2009).

                                         -2-
      On January 28, 2010, Mr. Jamieson filed an application for post-conviction

relief in the District Court of Garfield County, Oklahoma, raising various grounds

of ineffective assistance of trial and appellate counsel. The court denied the

application summarily. After an appeal, however, the OCCA remanded the

matter, ordering the district court to conduct a more detailed examination of Mr.

Jamieson’s claims of ineffective assistance of appellate counsel. After a hearing

was held, his remaining claims were dismissed. The dismissal was affirmed on

appeal.

      On November 1, 2010, Mr. Jamieson filed a federal habeas petition, raising

nine grounds of error, some of which are duplicative. In grounds one and two,

Mr. Jamieson claims that he was denied effective assistance of trial and appellate

counsel because his attorneys failed to properly research and present his motion

to suppress statements he gave to investigators.

      In grounds three and four, he contends that he was denied effective

assistance of trial and appellate counsel in that his trial attorneys failed to

properly advise him that he was eligible only for a mandatory minimum sentence

of life with parole on his blind plea, and because his appellate counsel failed to

raise this claim on appeal.

      Ground five states a claim of ineffective assistance of trial and appellate

counsel on the grounds both that Mr. Jamieson’s trial attorneys failed to pursue a

defense to the charge by attacking the reliability of the State’s eyewitness


                                          -3-
testimony and that his appellate attorney failed to assert the latter claim in his

certiorari appeal.

      In ground six, he claims that his plea was not entered into knowingly and

voluntarily because the judge who presided did not appropriately and clearly

advise him that the minimum sentence he could receive was life with parole.

Also, he claims that he was denied effective assistance of appellate counsel

because the claim was not raised in his certiorari appeal.

      In ground seven, Mr. Jamieson claims that he was denied effective

assistance of trial and appellate counsel inasmuch as trial counsel did not solicit

the testimony of his father and sister in support of his claim to withdraw his plea,

and because his appellate counsel failed to raise this claim in his certiorari appeal.

In ground eight, he contends that he was denied effective assistance of appellate

counsel because his appellate attorney “failed to assert the claims of ineffective

assistance of trial counsel urged . . . in grounds three, four, and seven,” and failed

to obtain evidence from his father and sister in order to support his claims in the

certiorari appeal. R., Vol. 1, at 374.

      Finally, in ground nine, he contends that he was not provided reasonable

notice of the District Court of Garfield County’s decision to grant an evidentiary

hearing on his claims, and was therefore unable to properly present evidence in

support of his petition at the hearing.

      The magistrate judge rejected Mr. Jamieson’s claims and recommended that


                                          -4-
the petition be denied. The district court adopted the Report and

Recommendation in full and denied Mr. Jamieson’s request for a COA. Mr.

Jamieson timely filed a notice of appeal.

                                   II. Discussion

      We lack jurisdiction to consider the merits of a habeas appeal unless a

petitioner obtains a COA. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). Further, where the district court denies a

petition on procedural grounds, the petitioner must demonstrate “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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      The magistrate judge, in a thorough Report and Recommendation, reasoned

that the district court should reject Mr. Jamieson’s claims—in grounds three, four,

and six—that his plea was entered into involuntarily and unintelligently because

his plea colloquy established both that no promises or guarantees were made to

him in terms of his sentence and that he was given all pertinent information

relevant to the minimum sentence he would receive under his plea. The

magistrate judge next concluded that the “OCCA determined [that Mr.

Jamieson’s] Sixth Amendment claims of ineffective assistance of trial counsel


                                         -5-
were procedurally barred for purposes of post-conviction review due to [his]

failure to show cause for not raising the claims in his certiorari appeal.” 2 R., Vol.

1, at 383. The magistrate judge found that Mr. Jamieson could not show “cause”

and “prejudice” to excuse his procedural default in that his trial and appellate

attorneys’ decisions were not unreasonable, and in any event, that Mr. Jamieson

could not show that he would not have pleaded guilty if the alleged errors were

not made (i.e., Mr. Jamieson could not make an adequate showing of prejudice).

      Finally, the magistrate judge construed Mr. Jamieson’s claim in ground

nine as a request for a hearing in federal court. The magistrate judge found that

such a hearing was not warranted because Mr. Jamieson “had multiple

opportunities to present the factual bases for his claims” and they could be

“resolved on the basis of the record.” R., Vol. 1, at 398. After reviewing the

Report and Recommendation, Mr. Jamieson’s objections, and the rest of the

record, the district court concurred with the magistrate judge’s determinations and

adopted the Report and Recommendation in its entirety. It then denied Mr.



      2
             The Report and Recommendation notes that, under Okla. Stat. tit. 22,
§ 1089(C), ineffectiveness claims that could have been raised on direct appeal,
but were not, are waived. The magistrate judge applied our inquiry regarding the
adequacy of Oklahoma’s procedural bar rule—namely, the rule will apply where
“trial and appellate counsel differ; and the ineffectiveness claim can be resolved
upon the trial record alone. All other ineffectiveness claims are procedurally
barred only if Oklahoma’s special appellate remand rule for ineffectiveness
claims is adequately and evenhandedly applied.” Snow v. Sirmons, 474 F.3d 693,
726 n.35 (10th Cir. 2007) (quoting English v. Cody, 146 F.3d 1257, 1264 (10th
Cir. 1998)).

                                          -6-
Jamieson’s request for a COA and dismissed his petition. Mr. Jamieson timely

filed a notice of appeal.

      Having reviewed the record and Mr. Jamieson’s petition, we conclude that

jurists of reason could not disagree with the magistrate judge’s resolution of his

claim or with the district court’s adoption of that resolution. 3 Therefore, his

request for a COA must be rejected.

                                  III. Conclusion

      For substantially the same reasons articulated by the magistrate judge and

adopted by the district court, we DENY Mr. Jamieson’s request for a COA and

DISMISS this appeal.



                                       Entered for the Court


                                       JEROME A. HOLMES
                                       Circuit Judge




      3
              With regard to Mr. Jamieson’s ninth ground for relief, we note that
insofar as Mr. Jamieson sought to place before the district court in a hearing
evidence that was not before the state court (i.e., evidence that was not part of the
state court record)—in addition to the sound rationale for rejecting this ground
articulated by the magistrate judge, and adopted by the district court, which
pertained to the factual circumstances of this case—as a matter of law, the
Supreme Court has recently foreclosed the possibility of relief on such a claim.
See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that habeas
“review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits”).

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