UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

SCOTT ALLEN BLACK, Petitioner – Appellant,

v. JAMES EZELL, Warden Respondent - Appellee. No. 12-6081 (D.C. No. 5:11- CV-01130-M) (D. W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL

Before LUCERO , O'BRIEN , and MATHESON , Circuit Judges.

Scott Allen Black seeks to appeal from the district court’s deni al of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The issues he wants us to review have been waived. We deny his application for a Cer tificate of Appealability (COA) and dismiss.

I. BACKGROUND AND PROCEDURAL HISTORY An Oklahoma state court jury convicted Black of first-degree arson. He was later sentenced to 20 years imprisonment and fine d $25,000. In a counseled appeal to the

Oklahoma Court of Criminal Appeals (OCCA), he argued th e evidence was insufficient to sustain his conviction; nothing more. Th e OCCA rejected the argument and affirmed. Proceeding pro se, he then sought stat e post-conviction relief. He argued: FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - (1) his statements to la w enforcement officials we re improperly admitted, (2) evidence admitted at his trial was the fruit of an impermissible search and seizure and should not have been admitted, (3) a juror was not qualified to serve on the jury, thereby denying Petitioner a fair tria l, (4) [he] was denied his Sixth Amendment right to e ffective assistance of trial counsel, and (5) [he] was denied his Sixth Ame ndment right to effective assistance of appellate counsel. (R. at 405.) The state court concluded he had procedurally defaulted the first four claims and rejected the fifth on the merits. 1 The OCCA affirmed. Black then brought this 28 U.S.C. § 2254 habeas petiti on, making two claims: (1)

the evidence was insufficient to sustain the conviction, and (2) his trial and appellate

counsel were ineffective. The district judge referred the case to a magistrate judge. 2 After the state responded to the petition, the magistrate carefully re viewed the evidence supporting Black’s convictio n and concluded “[t]here was more than sufficient evidence . . . . to support the arson conviction.” (R. 41 0.) The magistrate also painstakingly reviewed the performance of trial counsel and appellate counsel and concluded their representa tion was not ineffective. 3

1 “Oklahoma’s procedural bar rules indi cate ineffective assistance of counsel claims must normally be brought on direct appeal.” Snow v. Sirmons , 474 F.3d 693, 726 n.35 (10th Cir. 2007). Hence, his fourth clai m, ineffective assistance of trial counsel was procedurally defaulted along w ith the first three claims wh ich also were procedurally defaulted because they coul d have been directly a ppealed but were not. See Fowler v. State , 896 P.2d 566, 568- 69 (Okl. Cr. 1995). His fifth claim, ineffective assistance of appellate coun sel, was properly raised for the first time in his petiti on for post-conviction relief. See Harris v. State , 167 P.3d 438, 441 (Okla. Crim. App. 2007) (“A claim of ine ffective assistance of appellate counsel may be raised for the first ti me on post-conviction.”).

2 See 28 U.S.C. § 636(b)(1)(B).

3 The magistrate explained that Black may well have procedurally defaulted his- 3 - Black objected to the magistrate’s re port and recommendation (R&R). Although we have some difficulty understanding hi s objection, it appears to argue (1) the magistrate incorrectly relied on inadmissible statements to conclu de the evidence was sufficient to sustain his conviction, and (2) there was a Brady violation entitling him to a new trial. Without explicitly addressing Black’ s objections, the district judge adopted the magistrate’s R&R, denied Black’s petition, a nd denied his application for a certificate of appealability (COA).

II. DISCUSSION A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. 28 U. S.C. § 2253(a), (c)(2); Miller–El v. Cockrell , 537 U.S. 322, 336 (2003). We issue a COA “only if the applican t has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This mean s the applicant must present an issue, the proper resolution of wh ich is debatable among reasonable jurists and therefore “deserve[s] encourag ement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation marks omitted). Normally we undertake a preliminary,

ineffective assistance of trial counsel claim, but chose to dispose it on the merits rather than deal with the collate ral issues involv ed in the procedural default. See Cannon v. Mullin , 383 F.3d 1152, 1159 (10th Cir. 2004) (“When que stions of procedural bar are problematic, however, and the substantive cl aim can be disposed of readily, a federal court may exercise its discretion to bypass the procedural issues and reject a habeas claim on the merits.”). The state court concluded Bl ack was not denied th e effective assistance of appellate counsel, and the Oklahoma Court of Criminal Appeals affirmed. The magistrate concluded the Oklahoma Court of Criminal Appeals’ decision was neither contrary to established Supreme Court preced ent nor an unreasonable application of it. See 28 U.S.C. § 2254(d)(1).- 4 - though not definitive, lega l analysis of his claims, see Miller–El , 537 U.S. at 338, but Black has not preserved his claims for our review. He raises three issues in his applica tion for a COA. As we understand his application, he contends the district court erre d: (1) in failing to address the merits of the

constitutional issues the state c ourts treated as procedurally defaulted on review of his state petition for post-conviction relief; (2) in failing to address the merits of the ineffective assistance of trial counsel claim; and (3) in concluding, without an evidentiary hearing, he had received effective assistance of appellate counsel. Black waived our

consideration of these issues because he ra ised none of them in his objection to the magistrate’s R&R. Moore v. United States , 950 F.2d 656, 659 (10t h Cir. 1991) (adopting a firm waiver rule); see, e.g., Hall v. Jordan , 143 F. App’x 74, 75 –76 (10th Cir. 2005) (noting firm waiver rule forecloses consid eration of arguments not presented in the objection to a magistrate’s report and recommendation). 4 Because we cannot look to the merits of any of his claims we DENY Black’s application for a COA and dism iss this matter. We also DENY his motion to proceed without prepayment of costs and fees. He is required to pay all fili ng and docketing fees

4 Neither of the exceptions to the firm waiver rule apply in this case because Black was advised of the consequences of fa iling to object and pres ented other objections to the magistrate. See Wirsching v. Colorado, 360 F.3d 1191, 1997 (10th Cir. 2004) (noting we may excuse a failure to object wh en a pro se litigant is not advised of the consequences of a failure to object or the interests of justice require).- 5 - to the Clerk of the District Court. See Kinnell v. Graves , 265 F.3d 1125, 1129 (10th Cir. 2001). Entered by the Court:

Terrence L. O’Brien United States Circuit Judge