FILED

United States Court of Appeals

Tenth Circuit

August 7, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TOMMIE L. PAYNE,

Petitioner - Appellant, No. 08-7008

v. E.D. Okla.

DAVE MILLER, Warden; JUSTIN

JONES, Director of Oklahoma

Department of Corrections;

OKLAHOMA DEPARTMENT OF

CORRECTIONS; STATE OF

OKLAHOMA,

Respondents - Appellees.

(D.C. No. 06-CV-00328-FHS-KEW)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.

Tommie Loyd Payne, a state prisoner, seeks a certificate of appealability

(COA) to appeal from the district court’s dismissal of his 28 U.S.C. § 2254

petition for writ of habeas corpus. Because Payne has failed to make “a

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

§ 2253(c)(2), we deny his application.

Payne was convicted in Oklahoma state court on four charges of sexual

misconduct and was sentenced to a term of imprisonment. On direct appeal, the
1

 Payne was ultimately sentenced to fifteen years for second degree rape, 

twenty years for forcible sodomy, and fifteen years for second degree rape by

instrumentation. 

2

 The court explained: “When Petitioner filed his direct appeal, he did not

raise these claims. Petitioner raised them subsequently in his application for

post-conviction relief which was denied by the trial court . . . . Because the

Oklahoma Court of Criminal Appeals correctly applied the procedural bar to

Petitioner’s claims, habeas relief must be denied on them.” (Appellant’s Br., Ex.

2 at 7-8.) “Further, Petitioner has been unable to show cause for his failure to

raise these claims on direct appeal and he [cannot] show actual prejudice or a

miscarriage of justice.” (Id. at 9.)

-2-

Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction and

sentence except for one count, which it reversed with instructions to dismiss. 

That count was dismissed and Payne’s sentence was adjusted accordingly.1

 Payne

filed an application for post-conviction relief in state court, which was denied. 

The OCCA affirmed.

Payne filed a § 2254 petition for writ of habeas corpus in federal court

asserting five grounds for relief. The district court denied Payne’s petition,

determining the first claim lacked merit, the second claim was not justiciable, and

the last three claims were procedurally barred because the OCCA dismissed them

on independent and adequate state grounds, concluding they were not raised on

direct appeal, in contravention of Oklahoma law.2

 See Okla. Stat. tit. 22, § 1086

(“All grounds for relief available to an applicant under this act must be raised in

his original, supplemental or amended application. Any ground finally

adjudicated or not so raised . . . may not be the basis for a subsequent application,
-3-

unless the court finds a ground for relief asserted which for sufficient reason was

not asserted or was inadequately raised in the prior application.”); see also

Walker v. State, 933 P.2d 327, 330-31 (Okla. Crim. App. 1997) (“Post-conviction

claims which could have been raised in previous appeals but were not are

generally considered waived.”). 

Payne appeals from the district court’s denial of his petition, raising only

those claims the court held were procedurally barred. In those claims, he alleged

the trial court erred by denying defense counsel’s request for a continuance to

enable counsel to educate himself on DNA analysis and prior false allegations. 

He contends this error prevented counsel from independently analyzing the DNA

sample at issue. We review the district court’s factual findings for clear error and

its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001). 

A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue

a COA only if a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court

dismissed Payne’s petition on procedural grounds, Payne must demonstrate both

that “jurists of reason would find it debatable whether 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.
-4-

McDaniel, 529 U.S. 473, 484 (2000). “Where 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.

A plain procedural bar is present here and the district court did not err in

dismissing Payne’s petition. As a general rule, “federal courts will not disturb

state court judgments based on adequate and independent state law procedural

grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004); see also Coleman v.

Thompson, 501 U.S. 722, 729-30 (1991) (“The [independent and adequate state

ground] doctrine applies to bar federal habeas when a state court declined to

address a prisoner’s federal claims because the prisoner had failed to meet a state

procedural requirement. In these cases, the state judgment rests on independent

and adequate state procedural grounds.”). The OCCA’s judgment here was based

on an adequate and independent state law procedural ground, Okla. Stat. tit. 22, §

1086. See Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (holding Okla.

Stat. tit. 22, § 1086 “is an independent and adequate state ground for denying

habeas relief”). 

The Court has recognized “an equitable exception to the [procedural] bar

when a habeas applicant can demonstrate cause and prejudice for the procedural

default. The cause and prejudice requirement shows due regard for States’

finality and comity interests while ensuring that fundamental fairness remains the
3

 Acknowledging “[t]he cause and prejudice standard is not a perfect

safeguard against fundamental miscarriages of justice,” the Court has recognized

a “narrow exception to the cause requirement where a constitutional violation has

probably resulted in the conviction of one who is actually innocent of the

substantive offense.” Dretke, 541 U.S. at 393 (quotations omitted). Payne does

not claim he is actually innocent of the offenses for which he was convicted. He

asserts only that, had a continuance been granted, his counsel could have obtained

a DNA sample from another individual to determine if he had impregnated the

victim.

-5-

central concern of the writ of habeas corpus.” Dretke, 541 U.S. at 393

(quotations and citations omitted). Under this standard, a petitioner must

“demonstrate cause for his state-court default of any federal claim, and prejudice

therefrom, before the federal habeas court will consider the merits of that claim.”3

Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (emphasis omitted). Payne has

not attempted to make this showing. In the district court and here, he argues only

the merits of his claims. This is clearly insufficient to satisfy the cause and

prejudice standard.

We DENY a COA and DISMISS this prescient appeal.

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge