                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         June 29, 2005
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 KEVIN L. GILMORE,

          Petitioner - Appellant,
                                                       No. 04-6372
 v.
                                                (D.C. No. CIV-03-1498-HE)
                                                       (W.D. Okla.)
 RON WARD,

          Defendant - Appellee.


                                       ORDER


Before EBEL, McKAY and HENRY, Circuit Judges.


      Kevin L. Gilmore (“Petitioner”), a state prisoner appearing pro se and in

forma pauperis, 1 seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his Petition for Writ of Habeas Corpus, which was

brought pursuant to 28 U.S.C. § 2254 (2000). For the reasons stated below, we

DENY COA and DISMISS the appeal.




      1
       Based on our review of Petitioner’s financial declarations, we grant his
motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(1)
(2000).
I.    Background

      The events giving rise to this case occurred slightly before 7:00 p.m. on

December 7, 2000, when Petitioner allegedly attempted to take money from a

Dollar General Store by threatening a cashier. Petitioner’s attempts were

unsuccessful, and based on reports from witnesses, law enforcement officers were

able to arrest and charge Petitioner several weeks later. Following a jury trial

during which Petitioner was represented by counsel, Petitioner was convicted in

Oklahoma state court of Attempted Robbery in the First Degree After Former

Conviction of a Felony and sentenced to twenty years in prison. On appeal,

Petitioner (represented by new counsel) asserted that (1) the trial court erred in

excluding Petitioner’s copy of a temporary shelter card showing his admission to

the City Rescue Mission on December 7, 2000, and (2) the trial court erred in

instructing the jury on the permissible range of punishment for Attempted

Robbery in the First Degree. The Oklahoma Court of Criminal Appeals

(“OCCA”) rejected these claims on their merits and affirmed Petitioner’s

conviction and sentence on October 24, 2002.

      Petitioner then filed an application for post-conviction relief in Oklahoma

state court in which he asserted that (1) he was denied effective assistance of trial

and appellate counsel; (2) the trial court lacked jurisdiction over the criminal

proceeding because Petitioner should have been charged with second-degree


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attempted robbery; and (3) Petitioner’s sentence was excessive because it

exceeded the statutory punishment for second-degree attempted robbery.

      Both the Oklahoma District Court and the OCCA denied Petitioner’s

application for post-conviction relief. The OCCA specifically found that all of

the claims asserted in the post-conviction appeal except the claim of ineffective

assistance of appellate counsel were procedurally barred as a result of Petitioner’s

failure to raise these claims in his direct appeal. The OCCA then concluded that

Petitioner had not shown that his appellate counsel provided constitutionally

ineffective assistance of counsel.

      Petitioner then filed this § 2254 petition in Federal District Court, asserting

the same arguments raised in his state-court post-conviction proceedings. 2 After

referring the matter to a magistrate judge for consideration, the district court

denied the petition and Petitioner’s request for a certificate of appealability

(“COA”). Petitioner now seeks a COA from this court so that he may appeal the

denial of his § 2254 petition.




      2
        In a supplemental brief filed with this court on March 17, 2005, Petitioner
also claims, for the first time, that the photo identification procedures employed
by the police were unduly suggestive and violated the Due Process Clause of the
Fourteenth Amendment. Because this argument was never raised as a ground for
habeas relief in the district court, we decline to consider it here. See Singleton v.
Wulff, 428 U.S. 106, 119 (1976).

                                         -3-
II.   Discussion

      Under 28 U.S.C. § 2253(c)(1), this court lacks jurisdiction to consider the

merits of Defendant’s appeal unless he first obtains a COA. In the instant case,

Defendant seeks a COA from this court because the district court denied his

request to appeal its decision. See Fed. R. App. P. 22(b)(1). To prevail on his

COA request, Defendant must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This is accomplished by

establishing that “reasonable jurists could debate whether (or, for that matter,

agree that) 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, 483-484 (2000) (quotations omitted).

      A.     Ineffective assistance of trial counsel

      Petitioner asserts that his trial counsel was ineffective for failing to object

to the district court’s exclusion of certain alibi evidence, to wit, a “temporary

shelter card” from the City Rescue Mission on December 7, 2000. 3 Petitioner


      3
        We note at the outset that Petitioner’s claim of ineffective assistance of
trial counsel was deemed procedurally barred by the Oklahoma Court of Criminal
Appeals because Petitioner failed to raise this issue on direct appeal. However,
the resolution of this claim is necessarily intertwined with Petitioner’s claim of
ineffective assistance of appellate counsel, since Petitioner argues that his
appellate attorney was ineffective for failing to raise ineffective assistance of trial
counsel. In other words, to determine whether Petitioner’s appellate counsel was
ineffective for failing to raise trial counsel’s ineffective assistance, we must first
                                                                          (continued...)

                                         -4-
contends that this evidence, if admitted, would have shown that he was not in the

vicinity of the robbery at the time the crime was committed. In order to assert an

ineffective assistance of counsel claim, Defendant must set forth specific

“performance” errors on the part of trial counsel and demonstrate “prejudice,”

i.e. , a “reasonable probability” that, absent those errors, a different outcome

would occur. Strickland v. Washington , 466 U.S. 668, 688 (1984). With regard

to the claims that Petitioner’s attorney should have objected more vigorously to

the exclusion of the temporary shelter card, we agree with the district court and

the magistrate judge that none of the alleged conduct overcomes our     presumption

that counsel acted within the wide range of reasonable professional judgment.

See Strickland , 688 U.S. at 689. This is because, as the magistrate judge noted,

“Petitioner [has] not provided sufficient record for this Court to determine the

nature of the evidence at issue, or the nature and rationale of the trial court’s

ruling thereon.” As a result, we hold that Defendant has failed to meet the

standard for COA on his ineffective assistance of trial counsel claim.



      3
        (...continued)
necessarily determine whether trial counsel was ineffective in the first place.
        Although a federal court will not ordinarily consider a claim upon which a
petitioner has procedurally defaulted in state court, this rule is based on
federalism and comity, not jurisdiction. See Trest v. Cain, 522 U.S. 87, 89
(1997). As a result, we are not required to apply procedural default sua sponte,
id. at 89-90, and decline to do so here with regard to Petitioner’s ineffective
assistance of trial counsel claim.

                                          -5-
      B.     Ineffective assistance of appellate counsel claim

      Because Petitioner appears   pro se, we construe his application for COA

liberally. Cannon v. Mullin , 383 F.3d 1152, 1160 (10th Cir. 2004),    cert. denied ,

125 S. Ct. 1664 (2005). But even giving the COA application a generous reading,

we can discern only one ground for Petitioner’s claim of ineffective assistance of

appellate counsel: the appellate attorney’s failure to raise the ineffectiveness of

Petitioner’s trial counsel on direct appeal.

      Under 28 U.S.C. § 2254(d), Petitioner may only obtain federal habeas relief

if the state decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” Here, the OCCA held in its

order denying post-conviction relief that appellate counsel’s failure to raise the

ineffective assistance of trial counsel claim did not render appellate counsel’s

performance deficient, nor did it render the result of Petitioner’s appeal unreliable

and unfair. We agree with the OCCA’s determination.

      The Sixth Amendment does not require appellate counsel to raise every

nonfrivolous argument on appeal.    Banks v. Reynolds , 54 F.3d 1508, 1515 (10th

Cir. 1995). Given our determination that trial counsel’s failure to object more

vigorously to the exclusion of the temporary shelter card did not, in itself,


                                         -6-
constitute ineffective representation, we cannot state that appellate counsel’s

failure to allege that trial counsel acted ineffectively was a performance

deficiency that implicates the Sixth Amendment. Petitioner has failed to make a

substantial showing of a denial of a constitutional right with regard to this claim

and, as a result, we deny COA.

      C.     Procedural bar

      Petitioner’s remaining grounds for habeas relief are: (1) that the trial court

lacked jurisdiction over the criminal proceeding because the evidence supported

only the lesser-included offense of attempted robbery in the second degree; and

(2) that Petitioner’s sentence was excessive because it exceeds the statutory range

of punishment for second degree attempted robbery. Petitioner raised these

claims during his request for post-conviction relief in the state courts, and the

OCCA deemed the claims to be procedurally barred due to Petitioner’s failure to

raise the issues on direct appeal.

      For substantially the reasons given by the magistrate judge below and

adopted by the district court, we agree that Oklahoma’s procedural default rule

with regard to these issues is an adequate and independent state ground which

precludes federal review. Additionally, for the reasons given below, we agree

that Petitioner has not demonstrated sufficient cause or prejudice to overcome the

procedural bar. Accordingly, we deny COA on these claims.


                                         -7-
III.   Conclusion

       From our review of the record and Petitioner’s application for COA, it does

not appear 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, 529 U.S. at 483-

484. Accordingly, we DENY COA and DISMISS the appeal.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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