                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 18 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 BRIAN TYRONE SCOTT,

       Petitioner-Appellant,

 v.                                                      No. 04-7097
                                                         (E.D. Okla.)
 ERIC R. FRANKLIN, Warden,                        (D.Ct. No. 03-CV-641-W)

       Respondent-Appellee.




         ORDER DENYING CERTIFICATE OF APPEALABILITY
                   AND DISMISSING APPEAL


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.


      Appellant Brian T. Scott, an Oklahoma state inmate appearing pro se,

appeals the district court’s decision denying his habeas corpus petition, filed

pursuant to 28 U.S.C. § 2254, challenging his convictions for assault and battery

with a deadly weapon, larceny of an automobile, and assault and battery on a

police officer. We deny Mr. Scott’s request for a certificate of appealability and

dismiss his appeal.
      Along with other offenses, 1 Mr. Scott was charged with assault and battery

on a police officer, assault and battery with a deadly weapon (knife), and larceny

of an automobile. With respect to the latter two offenses, he was tried and

convicted of the lesser offenses of assault and battery with a dangerous weapon,

and unauthorized use of a motor vehicle. However, his judgment and sentence

incorrectly listed convictions for the initial offenses, rather than the correlating

lesser offenses. On appeal, Mr. Scott successfully sought correction of the

judgment and sentence to reflect the description of the offenses for which he was

convicted, resulting in the Oklahoma Court of Criminal Appeals remanding the

case to the district court and instructing it to vacate the judgment and sentence for

those two convictions and enter an order nunc pro tunc to accurately reflect his

convictions for assault and battery with a dangerous weapon and unauthorized use

of a motor vehicle. Accordingly, the state district court filed an amended

judgment and sentence properly reflecting those two convictions.



      Thereafter, Mr. Scott filed a petition for rehearing claiming, in part, that his

appellate counsel erred in referring to the omission of the lesser offenses of

assault and battery with a dangerous weapon and the unauthorized use of a motor


      1
        Mr. Scott was also charged and convicted of first degree burglary, forcible
sodomy, and malicious injury to property, which the Oklahoma Court of Criminal
Appeals affirmed on direct appeal. However, it vacated his kidnaping conviction.

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vehicle as merely a “scrivener’s error.” Instead, Mr. Scott claimed, for the first

time, that he should not have been convicted of those lesser included offenses

because he was never charged with them, in violation of his Sixth Amendment

rights. He also contended his conviction for assault and battery to a police officer

was improperly based on perjury by the officer. The Oklahoma Court of Criminal

Appeals summarily denied Mr. Scott’s petition for rehearing for failure to meet

the requisite criteria for filing a petition for rehearing.



      Mr. Scott then filed the instant 28 U.S.C. § 2254 federal habeas petition

renewing his claims: 1) he could not be tried for lesser included offenses for

which he was not charged, which his counsel referred to as a “scrivener’s error”;

and 2) he improperly received a conviction through perjured testimony by a police

officer. While Mr. Scott did not raise these two grounds for relief in his direct

appeal, nor exhaust them through state post-conviction proceedings, he claimed

he satisfied any exhaustion requirements for state post-conviction remedies when

he raised them in his petition for rehearing. Mr. Scott further claimed he did not

raise the “scrivener’s error” issue on the two lesser included offenses in his direct

appeal because his appellate counsel was ineffective in failing to do so.



      In denying Mr. Scott’s § 2254 habeas petition, the federal district court


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determined the Oklahoma Court of Criminal Appeals denied his petition for

rehearing on procedural grounds for failure to meet the requisite criteria for filing

a petition for rehearing, and therefore, pursuant to Castille v. Peoples, 489 U.S.

346, 350-51 (1989), a fair presentation of his issues to a state court did not occur

for the purpose of exhaustion. See also Parkhurst v. Shillinger, 128 F.3d 1366,

1368-69 (10th Cir. 1997). Similarly, relying on Murray v. Carrier, 477 U.S. 478,

489 (1986), the district court concluded Mr. Scott’s ineffective assistance of

appellate counsel claim must also be exhausted in the state court before

proceeding under a § 2254 motion. See also Parkhurst, 128 F.3d at 1370.

Finally, the district court determined Mr. Scott failed to make the requisite

showing a state post-conviction proceeding would be futile, as required by

Castille, 489 U.S. at 351. Accordingly, the district court denied Mr. Scott’s

§ 2254 petition and his request for a certificate of appealability.



      On appeal, Mr. Scott raises the same issue contesting his conviction on the

two lesser included offenses. He appears, however, to have abandoned his

perjury claim, as he makes no reference to it or argument in support thereof. In

addition, he renews the same ineffective assistance of appellate counsel claim,

and now, for the first time on appeal, raises an ineffective assistance of trial

counsel claim, stating the same attorney at trial heard the “miscitation” of the


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charges against him, but failed to “apprise” the court. Similarly, for the first time

on appeal, he claims the state court denied his “constitutional right to jury trial

transcripts at public expense.” He further renews his contention he exhausted his

state claims by filing his petition for rehearing, basing his argument on our

decision in Bear v. Boone, 173 F.3d 782 (10th Cir. 1999). He also suggests,

without argument or support, he should receive a certificate of appealability

because any attempt to exhaust his state remedies would “be futile.”



      An appeal may not be taken from a final order in a § 2254 proceeding

without a certificate of appealability. 28 U.S.C. § 2253(c)(1). In order for a

petitioner to be entitled to a certificate of appealability, he must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate 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) (quotation marks, alteration, and citation

omitted). However:

      When the district court denies a habeas petition on procedural
      grounds without reaching the prisoner’s underlying constitutional
      claim, a [certificate of appealability] should issue when the prisoner
      shows, at least, that jurists of reason would find it debatable whether

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      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). These are threshold inquiries we

apply to determine whether we may entertain an appeal. Miller-El, 537 U.S. at

336. This court further construes pro se pleadings liberally, applying a less

stringent standard than formal pleadings drafted by lawyers. See Haines v.

Kerner, 404 U.S. 519, 520 (1972).



      Applying these principles, we have conducted a thorough review of the

pleadings, the record on appeal, and Mr. Scott’s brief and request for a certificate

of appealability, as well as the district court’s decision denying relief. For the

purpose of judicial economy, we decline to duplicate the district court’s analysis

in its order denying relief on the grounds presented in the habeas petition, other

than to briefly address 1) Mr. Scott’s claims he exhausted his state remedies, and

any state post-conviction remedies would otherwise “be futile,” and 2) the

apparent abandonment of his perjury claim.



      First, with respect to the issue of exhaustion, Mr. Scott claims he fully

exhausted his state remedies, pursuant to our decision in Bear v. Boone, when he

filed his petition for rehearing. In that case, the defendant raised the same issues


                                          -6-
on direct appeal to the Oklahoma Court of Criminal Appeals as he later raised in

his petition for rehearing before that court. 173 F.3d at 782-85. In his petition

for rehearing, Mr. Bear challenged the action taken by the Oklahoma Court of

Criminal Appeals in disposing of his direct appeal, rather than challenging the

actions of the trial court. Id. This court determined Mr. Bear sufficiently

exhausted his state remedies without filing a post-conviction petition, given the

futility of his bringing a petition on the same issues which the Oklahoma Court of

Criminal Appeals twice rejected, and which the state district court could not

overrule. Id.



      The facts in Bear are distinguishable from the instant case. Mr. Scott never

raised the issues contained in his petition for rehearing in his direct appeal, so the

Oklahoma Court of Criminal Appeals never considered them until it summarily

dismissed the petition for rehearing for failing to meet the requisite criteria for

bringing such a petition. Moreover, unlike the defendant in Bear, the errors Mr.

Scott raised in his petition for rehearing were not directed at any error by the

Oklahoma Court of Criminal Appeals, as required by Oklahoma Court of Criminal

Appeals Rule 3.14. 2 Consequently, our decision in Bear v. Boone does not


      2
         Under Rule 3.14(B), a petition for rehearing may only be filed for the following
alleged appellate errors: 1) the Oklahoma Court of Criminal Appeals overlooked some
question decisive of the case and duly submitted by the attorney of record, or 2) the

                                           -7-
remedy Mr. Scott’s exhaustion problem. Moreover, because Oklahoma has no

time limit on initial post-conviction habeas proceedings for non-capital offenses,

Mr. Scott has not shown any other obstacle making exhaustion of his state

remedies futile. See Moore v. Gibson, 27 P.3d 483, 484 (Okla. Crim. App. 2001);

see also Okla. Stat. Ann. tit. 22, § 1080 (specifying no time limit for filing initial

post-conviction petition).



      Next, Mr. Scott clearly waived the perjury issue contained in his § 2254

petition when, on appeal, he failed to make any argument or cite any authority to

support that claim. See United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir.

1996). As a result, nothing in Mr. Scott’s brief or request for a certificate of

appealability dissuades us from our determination the district court correctly

assessed the claims presented in his § 2254 petition and denied Mr. Scott’s

petition.



      The additional errors Mr. Scott raises for the first time on appeal must also

be dismissed. We generally will not exercise jurisdiction on issues not raised or



decision is in conflict with an express statute or controlling decision to which the
attention of the Oklahoma Court of Criminal Appeals was not called, either in the brief or
in oral argument. In this case, it is clear the Oklahoma Court of Criminal Appeals
summarily denied Mr. Scott’s petition for rehearing because the errors he raised therein
had nothing to do with appellate court error.

                                           -8-
addressed below, see Walker v. Mather (in re Walker), 959 F.2d 894, 896 (10th

Cir. 1992), nor will we consider conclusory or unsupported claims, see Hall v.

Bellmon, 935 F.2d 1106, 1113-14 (10th Cir. 1991). Moreover, Mr. Scott has not

shown he exhausted his remedies on any of these new issues in state court before

filing for habeas corpus relief in federal court, and therefore, we consider them

procedurally defaulted under 28 U.S.C. § 2254(b)(1)(A), and will not consider

them on appeal.



      Thus, for substantially the same reasons set forth in the district court’s

September 10, 2004 Order, and those articulated here, we conclude Mr. Scott fails

to make a substantial showing of the denial of a constitutional right as required by

28 U.S.C. § 2253(c). Accordingly, we DENY Mr. Scott’s request for a certificate

of appealability and DISMISS his appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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