UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

JEFFREY S. BAGBY,

Petitioner - Appellant,

v.

JAMES L. SAFFLE, Director of the Oklahoma Department of Corrections,

Respondent - Appellee.

No. 02-5086

D.C. No. 00-CV-278-H

(N.D. Oklahoma)

ORDER AND JUDGMENT(*)

Before KELLY, McKAY, and MURPHY, Circuit Judges.(**)

Petitioner-Appellant Jeffrey S. Bagby, a state inmate appearing pro se,seeks a certificate of appealability ("COA") allowing him to appeal the districtcourt's order denying relief on his petition for a writ of habeas corpus pursuant to28 U.S.C. § 2254. Because Mr. Bagby has failed to make "a substantial showingof the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2), wedeny his request and dismiss the appeal.

Mr. Bagby was convicted by a jury in Oklahoma state court of traffickingin illegal drugs (cocaine base) after former conviction of a felony. He wassentenced to 25 years imprisonment and fined $50,000. Mr. Bagby wasrepresented by counsel on direct appeal to the Oklahoma Court of CriminalAppeals ("OCCA") where he raised three claims: (1) his purported waiver of theSixth Amendment right to counsel did not meet constitutional standards; (2) hewas prejudiced by the trial court's decision to allow him to represent himselfwith standby counsel appointed; and (3) the improper reference to the right toappeal by the trial court denied him a constitutionally fair trial. The OCCAaffirmed.

Proceeding pro se, Mr. Bagby then filed for and was denied post-conviction relief in thestate trial court, where he raised the following claims: (1)ineffective assistance of both standby and appellate counsel; (2) due processviolations stemming from a constitutionally infirm charging Information; and (3)the exercise of his right to represent himself at trial was not a voluntary, knowingand intelligent waiver of his constitutional rights. In addition to denying post-conviction relief,the state trial court also denied Mr. Bagby's request for recordsfrom the trial. The trial court's denials of post-conviction relief and the recordsrequest were affirmed on appeal.

Mr. Bagby then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting the following grounds for relief: (1) ineffectiveassistance of standby and appellate counsel; (2) due process violations stemmingfrom a constitutionally infirm charging Information; (3) waiver of his right tocounsel was not voluntary, knowing and intelligent but the trial judge allowedhim to represent himself with standby counsel appointed; (4) denial of aconstitutionally fair trial due to the improper reference to the right to appeal bythe trial court; and (5) denial of due process and equal protection due to the trialcourt's refusal to grant his records request during post-conviction proceedings.

After detailed consideration of Mr. Bagby's arguments, the district courtdenied his petition. The court addressed the ineffective assistance of appellatecounsel claim (part of ground one) and the entirety of grounds three, four andfive on the merits. However, the court concluded that all remaining groundswere procedurally barred since they were raised for the first time in state post-convictionproceedings, and likewise concluded that Mr. Bagby did not showcause and prejudice nor did he demonstrate a fundamental miscarriage of justicesufficient to defeat the procedural bar on those grounds.

Mr. Bagby is now before us seeking a COA, asserting a multitude ofclaims, both new and old. He asserts the following claims that were neitherpresented to nor addressed by the district court: (1) insufficient evidence tosupport his trafficking conviction; (2) his right to present a defense was deniedwhen the trial judge did not allow him a reasonable opportunity to cross examineOfficer Spitter; (3) improper jury instructions were given on the burden of proof;(4) prosecutorial misconduct; (5) improper admission of evidence of alleged priordrug sales; (6) use of confidential informant testimony in violation of hisconstitutional rights; (7) due process violation in voir dire; (8) double jeopardyviolation for convictions for trafficking and use of a telecommunications device;and (9) the search warrant did not conform to Fourth Amendment standards. It isclear in this circuit that absent extraordinary circumstances, we will not considerarguments raised for the first time on appeal. McDonald v. Kinder-Morgan, Inc.,287 F.3d 992, 999 (10th Cir. 2002). Upon review of the district courtproceedings and the record, we find no extraordinary circumstances here and wedecline to consider these claims.

Mr. Bagby also asserts that reasonable jurists would find the districtcourt's assessment of the following constitutional claims debatable and clearlyerroneous: (1) ineffective assistance of trial/standby counsel; (2) ineffectiveassistance of appellate counsel; (3) waiver of his right to counsel was notvoluntary, knowing and intelligent but the trial judge allowed him to representhimself with standby counsel appointed; and (4) due process violations stemmingfrom a constitutionally infirm charging Information. Of these claims, the districtcourt addressed the second and third on the merits and determined that the firstand fourth were procedurally barred.

In order for this court to grant a COA, Mr. Bagby must make "asubstantialshowing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Wherethe district court has rejected Mr. Bagby's constitutional claims on the merits, hemust demonstrate that "reasonable jurists would find the district court'sassessment of the constitutional claims debatable or wrong." Slack v. McDaniel,529 U.S. 473, 484 (2000). Where the district court has rejected Mr. Bagby'sconstitutional claims on procedural grounds without reaching the merits, he mustdemonstrate that "jurists of reason would find it debatable whether the petitionstates a valid claim of the denial of a constitutional right and that jurists ofreason would find it debatable whether the district court was correct in itsprocedural ruling." Id.

Regarding those claims presented to the OCCA either on direct appeal oron post-conviction appeal which were denied, the district court could notproperly issue a writ of habeas corpus unless it found that the state courtadjudication resulted in a decision that "was contrary to, or involved anunreasonable application of, clearly established Federal law, as determined by theSupreme Court of the United States." 28 U.S.C. § 2254(d)(1); Williams v.Taylor, 529 U.S. 362, 412-13 (2000). Further, the fact that the OCCA affirmedthe lower court in a summary opinion has no effect on the deference owed to thestate court's result. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). It is against these standards that the district court's denial of Mr. Bagby's petitionmust be assessed.

Having carefully reviewed the district court's analysis of Mr. Bagby'ssecond and third claims on appeal and the entire relevant record, we concludethat Mr. Bagby has demonstrated no reason for us to conclude that reasonablejurists would find the district court's assessment of the constitutional claimsdebatable or wrong. In fact, we are persuaded that the reasoning of the districtcourt is sound and we agree that the OCCA's conclusions were not contrary toand did not involve an unreasonable application of clearly established federallaw. Mr. Bagby's mere conclusory assertions to the contrary do not suffice tosatisfy his burden in this regard. Though the district court specifically noted theareas Mr. Bagby needed to address to attempt to substantiate his claims, Mr.Bagby has not provided any basis for us to conclude differently.

Regarding Mr. Bagby's first and fourth claims on appeal, we likewiseconclude that he has failed to demonstrate that jurists of reason would find itdebatable whether the petition states a valid claim of the denial of aconstitutional right and that jurists of reason would find it debatable whether thedistrict court was correct in its procedural ruling. Mr. Bagby still fails to showeither cause and prejudice or a fundamental miscarriage of justice sufficient todefeat the procedural bar on claims one and four.

Since none of Mr. Bagby's claims suffice to make a substantial showing ofa denial of a constitutional right, we DENY a COA and DISMISS the appeal. We note that Mr. Bagby was granted leave to proceed in forma pauperis onappeal in an order signed by the district court on July 3, 2002.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. This courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**. After examining the briefs and theappellate record, this three-judgepanel has determined unanimously that oral argument would not be of materialassistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10thCir. R. 34.1(G). The case is therefore ordered submitted without oral argument.