                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      November 8, 2006
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court


 A N TH O NY RA Y WILEY ,

                 Petitioner - A ppellant,                 No. 06-6246
          v.                                           (W . D. Oklahoma)
 M ARTY SIRM ONS, W arden,                        (D.C. No. CIV-05-1231-L)

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Anthony Ray W iley seeks a certificate of appealability (COA) to appeal the

district court’s denial of his application for relief under 28 U.S.C. § 2254. See

28 U.S.C. § 2253(c)(1) (requiring a COA to appeal the denial of habeas relief).

He contends that (1) his due-process rights were violated when the Oklahoma

Court of Criminal Appeals (O CCA) applied a newly decided case in resolving his

appeal, (2) the evidence at his trial was insufficient to support his conviction, (3)


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
he is actually innocent, and (4) he received ineffective assistance of appellate

counsel. The district court denied his habeas application and request for a COA.

W e deny a COA and dismiss the appeal.

I.    B ACKGR OU N D

      On O ctober 3, 2002, M r. W iley was arrested follow ing a high-speed chase

in Oklahoma City. During the chase the car driven by M r. W iley crashed into an

occupied vehicle but continued for several blocks before stopping. After the car

stopped, one person exited the passenger side of the car and escaped. M r. W iley

exited the driver side of the car and ran aw ay, but was apprehended a short

distance from the car.

      M r. W iley was convicted by a jury of aggravated attempting to elude a

police officer after former conviction of two or more felonies and of leaving the

scene of an accident with personal injury after former conviction of two or more

felonies. He was sentenced to two concurrent 25-year terms. The OCCA

affirmed his convictions on July 7, 2004.

      He then filed an application for state postconviction relief in an Oklahoma

state district court. The application was denied on June 22, 2005, and the denial

was affirmed by the OCCA on September 16, 2005.

      On October 24, 2005, M r. W iley filed an application for habeas relief in the

United States District Court for the W estern District of Oklahoma. In addition to

the claims he presses in this court, he also alleged ineffective assistance of trial

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counsel. A magistrate judge prepared a report and recommendation that

recommended denial of the application. The district court adopted the report and

recommendation in its entirety on July 7, 2006.

II.   D ISC USSIO N

      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). This standard

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claims was either

“debatable or wrong.” Id.

      If the application was denied on procedural grounds, the applicant faces a

double hurdle. Not only must the applicant make a substantial showing of the

denial of a constitutional right, but he must also show “that jurists of reason

would find it debatable whether . . . the district court was correct in its procedural

ruling.” Id. “W here a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id. Therefore, in order to grant a COA w e

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must conclude both that the district court’s application of the procedural-default

doctrine and the merit of the substantive claims are debatable among jurists.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court 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.” 28 U.S.C.

§ 2254(d)(1), (2).

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only 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. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation

marks, brackets, and citations omitted). Therefore, for those of M r. W iley’s

claims that were adjudicated on the merits in state court, “AEDPA ’s deferential




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treatment of state court decisions must be incorporated into our consideration of

[his] request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      The magistrate judge’s report rejected M r. W iley’s due-process argument,

reasoning that any error by the OCCA in applying Easlick v. State, 90 P.3d 556,

559 (Okla. Crim. App. 2004) (altering the standard for reviewing sufficiency of

the evidence in cases premised entirely on circumstantial evidence), which was

decided during the pendency of his appeal, was harmless because the evidence

was sufficient even under the pre-Easlick standard. It also rejected his

sufficiency-of-the-evidence argument because of the substantial evidence of guilt.

No reasonable jurist could debate the analysis on either issue.

      As to M r. W iley’s actual-innocence claim, the m agistrate judge’s report

first observed that he did not raise this argument on direct appeal, and thus, under

Oklahoma case law, see Brecheen v. Reynolds, 41 F.3d 1343, 1349 n.4 (10th Cir.

1994) (“[In Oklahoma] postconviction relief is reserved only for the rare set of

circumstances where a particular claim could not have been raised on direct

appeal.” (internal quotation marks omitted)), he was procedurally barred from

raising it in his state or federal postconviction proceedings. It also noted that a

claim of actual innocence, absent some independent constitutional violation, is

not a ground for federal habeas relief, see LaFevers v. Gibson, 238 F.3d 1263,

1265 n.4 (10th Cir. 2001), and that M r. W iley had not shown that a fundamental

miscarriage of justice would occur if the district court did not consider his claim

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of actual innocence, see Coleman v. Thom pson, 501 U.S. 722, 750 (1991) (“In all

cases in which a state prisoner has defaulted his federal claims in state court

pursuant to an independent and adequate state procedural rule, federal habeas

review of the claims is barred unless the prisoner can demonstrate . . . that failure

to consider the claims will result in a fundamental miscarriage of justice.”).

Reasonable jurists could not debate the denial of this claim.

      M r. W iley’s final claim is that he received ineffective assistance of

appellate counsel because his appellate counsel failed to argue that his trial

counsel had rendered ineffective assistance. As the magistrate judge’s report

correctly observed, the O CCA addressed and rejected this claim in M r. W iley’s

state postconviction proceedings. Therefore, federal habeas review of this issue

is limited to whether the OCCA’s decision was contrary to or involved an

unreasonable application of federal law. See 28 U.S.C. § 2254(d).

      To prevail on an ineffective-assistance-of-appellate-counsel claim,

M r. W iley must show that his “counsel’s representation fell below an objective

standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

and “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,” id. at 694. In

rejecting this claim the OCCA concluded that M r. W iley had not shown that his

appellate counsel was unprofessional or that the outcome of his appeal would

have been different but for the alleged ineffective assistance. No reasonable

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jurist could dispute the district court’s denial of this claim on the ground that the

OCCA’s decision was not an unreasonable application of federal law.

      W e add only that there is no merit to two of M r. W iley’s challenges to the

analysis in the magistrate judge’s report of his claim that his appellate counsel

was ineffective in failing to raise an ineffective-trial-counsel argument on his

direct appeal. First, the report noted that although M r. W iley claimed to have

filed a complaint with the Oklahoma Bar Association regarding his trial counsel,

he did not provide a copy of the complaint or explain how it w as resolved.

Accordingly, one could not infer the substance of his claims from these

documents. M r. W iley correctly states in his brief to us that the record before

both the OCCA in postconviction proceedings and the federal district court

included copies of two letters from the Oklahoma Bar Association establishing

that he did, in fact, file a complaint. But these letters fail to indicate the

substance of his ineffective-trial-counsel claim, and therefore do not contradict

the report’s conclusion that he had failed to demonstrate a reasonable probability

that the claim would have led to relief on appeal.

      Second, M r. W iley disputes the report’s conclusion that trial counsel could

not have been ineffective for failing to call as a witness the owner of the vehicle

he was driving. The report reasoned that because the owner was not in the

vehicle at the time of the offense, it is unclear how his testimony could have

benefitted M r. W iley. M r. W iley contends, however, that the report erred in

                                           -7-
interpreting his argument, and that he actually “wanted his attorney to question

the owner of the car he allegedly crashed into,” not the car he was driving. Aplt.

Br. at 16.b. His contention contradicts the record. His allegation before the

OCCA and in federal district court was that “[t]rial counsel . . . never called to

court the owner of the automobile, which would have testified on my behalf, that

I was not the person who was driving his car.” R. Doc. 10-9 at 8 (emphasis

added). M r. W iley was undeniably referring to the owner of the car he was

driving, not the owner of the car he hit. The report’s interpretation of this

argument was proper. And to the extent that M r. W iley now argues for the first

time that his trial counsel should have called the ow ner of the other car as a

witness, we note that “this court will not consider issues on appeal that were not

raised in the district court.” See M cLuckie v. Abbott, 337 F.3d 1193, 1200 n.3

(10th Cir. 2003).

III.   C ON CLU SIO N

       W e DENY M r. W iley’s application for a COA and DISM ISS the appeal.

W e likewise DENY his motion for leave to proceed on appeal in form a pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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