UNITED STATES COURT 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 denial 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 Certificate 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 fined $25,000. In a counseled appeal to the 

Oklahoma Court of Criminal Appeals (OCCA), he argued the evidence was insufficient 

to sustain his conviction; nothing more. The OCCA rejected the argument and affirmed. 

Proceeding pro se, he then sought state post-conviction relief. He argued: 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 12, 2012

Elisabeth A. Shumaker 

Clerk of Court
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(1) his statements to law enforcement officials were 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 trial, (4) [he] was 

denied his Sixth Amendment right to effective assistance of trial counsel, 

and (5) [he] was denied his Sixth Amendment 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 petition, 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 reviewed the evidence 

supporting Black’s conviction and concluded “[t]here was more than sufficient 

evidence . . . . to support the arson conviction.” (R. 410.) The magistrate also 

painstakingly reviewed the performance of trial counsel and appellate counsel and 

concluded their representation was not ineffective.3

 

1

 “Oklahoma’s procedural bar rules indicate 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 claim, ineffective assistance of trial counsel was 

procedurally defaulted along with the first three claims which also were procedurally 

defaulted because they could have been directly appealed but were not. See Fowler v. 

State, 896 P.2d 566, 568-69 (Okl. Cr. 1995). 

His fifth claim, ineffective assistance of appellate counsel, was properly raised for 

the first time in his petition for post-conviction relief. See Harris v. State, 167 P.3d 438, 

441 (Okla. Crim. App. 2007) (“A claim of ineffective assistance of appellate counsel may 

be raised for the first time 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 
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Black objected to the magistrate’s report and recommendation (R&R). Although 

we have some difficulty understanding his objection, it appears to argue (1) the 

magistrate incorrectly relied on inadmissible statements to conclude 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, and 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 applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means the applicant must 

present an issue, the proper resolution of which is debatable among reasonable jurists and 

therefore “deserve[s] encouragement 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 collateral issues involved in the procedural default. See Cannon v. 

Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004) (“When questions of procedural bar are 

problematic, however, and the substantive claim 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 Black was not denied the 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 precedent nor an unreasonable application of it. 

See 28 U.S.C. § 2254(d)(1). 
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though not definitive, legal 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 application for a COA. As we understand his 

application, he contends the district court erred: (1) in failing to address the merits of the 

constitutional issues the state courts 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 raised none of them in his objection to the 

magistrate’s R&R. Moore v. United States, 950 F.2d 656, 659 (10th 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 consideration 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 dismiss this matter. We also DENY his motion to proceed 

without prepayment of costs and fees. He is required to pay all filing 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 failing to object and presented 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 when a pro se litigant is not advised of the 

consequences of a failure to object or the interests of justice require). 
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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