Singleton v. Hargett ( 1999 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 12 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    CANOVA GEORGE SINGLETON,
    Petitioner - Appellant,                    No. 98-7172
    v.                                                (D.C. No. 95-CV-570-B)
    STEVE HARGETT, Warden; THE                              (E.D. Okla.)
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,
    Respondents - Appellees.
    ORDER AND JUDGMENT *
    Before TACHA, McKAY, and MURPHY, Circuit Judges.
    After examining Petitioner-Appellant’s brief and the 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). The case is therefore ordered submitted without oral argument.
    Petitioner Canova George Singleton, proceeding pro se, appeals the district
    court’s dismissal of his petition for writ of habeas corpus filed pursuant to 28
    *
    This order and judgment is not binding precedent, except under the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.
    U.S.C. § 2254.
    Petitioner filed this habeas corpus petition challenging his conviction in
    Oklahoma state court for robbery with firearms after former conviction of a
    felony. He alleged three grounds for relief: (1) ineffective assistance of counsel
    at trial and on appeal; (2) failure to suppress photo lineup identification; and
    (3) insufficient evidence to convict. Because the Oklahoma state courts denied
    Petitioner’s state application for post-conviction relief as barred by his failure to
    show sufficient reason for not raising the alleged errors on direct appeal, the
    magistrate judge determined that the petition should be dismissed on the basis of
    a procedural bar. See R., Vol. I, Doc. 18. The magistrate judge concluded that
    federal review was barred because Petitioner had not demonstrated cause for the
    default as a result of the alleged violations. The magistrate judge determined that
    each of Petitioner’s claims failed on the merits and that he did not establish any
    other justification for failing to raise the arguments in the district court.
    After reviewing the magistrate judge’s findings and recommendation,
    Petitioner’s objections thereto, and the applicable law, the district court adopted
    the magistrate judge’s findings and recommendation and dismissed the petition.
    See id., Doc. 25. The court subsequently denied Petitioner’s request for a
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    certificate of probable cause. 1 Petitioner renews his application for a certificate
    of probable cause with this court. 2
    To obtain federal habeas corpus review of claims procedurally defaulted in
    state court pursuant to an independent and adequate state procedural rule, “the
    prisoner [must] demonstrate cause for the default and actual prejudice as a result
    of the alleged violation of federal law, or demonstrate that failure to consider the
    claims will result in a fundamental miscarriage of justice.” Coleman v.
    Thompson, 
    501 U.S. 722
    , 750 (1991). In this case, Petitioner argues on appeal
    that his claims of ineffective assistance of trial and appellate counsel properly
    established cause for the default and prejudice. He also claims that the state
    court’s refusal to provide a full and fair hearing on the material facts prejudiced
    1
    AEDPA does not apply to this petition for habeas corpus relief because it
    was filed in 1995 in the United States District Court for the Western District of
    Oklahoma and was subsequently transferred to the Eastern District of Oklahoma.
    Thus, Petitioner requires a certificate of probable cause rather than a certificate of
    appealability to proceed on appeal. See R., Vol. I, Doc. 27. Because the standard
    for seeking either certificate is essentially the same, Petitioner’s burden remains
    unchanged. See Lennox v. Evans, 
    87 F.3d 431
    , 434 (10th Cir. 1996) (holding that
    the standard for issuing a certificate of appealability is the same as the standard
    for issuing a certificate of probable cause established in Barefoot v. Estelle, 
    463 U.S. 880
    , 893 & n.4 (1983)), cert. denied, 
    519 U.S. 1081
     (1997), overruled in part
    on other grounds by United States v. Kunzman, 
    125 F.3d 1363
    , 1364 n.2 (10th
    Cir. 1997).
    2
    Petitioner also filed a motion to proceed on appeal in forma pauperis.
    Because he was permitted to proceed in forma pauperis in the district court, and
    because there has been no change to that designation, Petitioner retains his in
    forma pauperis status on appeal pursuant to Fed. R. App. P. 24(a)(3). We
    therefore deny his motion as moot.
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    him. We review de novo the district court’s denial of habeas relief, see Sinclair
    v. Henman, 
    986 F.2d 407
    , 408 (10th Cir. 1993), and we construe Petitioner’s pro
    se pleadings liberally. See Riddle v. Mondragon, 
    83 F.3d 1197
    , 1202 (10th Cir.
    1996).
    Although a showing of the denial of the right to effective assistance of
    counsel generally demonstrates cause and prejudice sufficient to overcome
    procedural default, see Coleman, 
    501 U.S. at 754
    ; Romero v. Tansy, 
    46 F.3d 1024
    , 1030 (10th Cir. 1995), we agree with the magistrate judge’s findings and
    conclusion that Petitioner’s claims of ineffective assistance of counsel are without
    merit and therefore are insufficient to constitute cause for the default. We also
    agree that Petitioner, who was not in custody at the time of the photo
    identification, has no constitutional right to counsel in an out-of-court
    photographic lineup. See United States v. Maxwell, 
    456 F.2d 1053
    , 1054 (10th
    Cir. 1972). As a result, Petitioner has not demonstrated that he was prejudiced by
    the way the state court handled his claims. Finally, Petitioner has not shown that
    the application of a procedural bar will result in a fundamental miscarriage of
    justice because he has not made a claim of actual innocence on appeal. See
    Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986).
    Because Petitioner’s claims are procedurally barred and because he has not
    made a substantial showing of the denial of a federal right, we deny his request
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    for a certificate of probable cause and dismiss the appeal.
    DENIED and DISMISSED.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
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