* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONNY GENE CLAUNCH,

Petitioner-Appellant,

v. EDWARD L. EVANS, Warden; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 98-6279 (W. District of Oklahoma) (D.C. No. CIV-97-500-L)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e court therefore orders the case submitted without oral ar gument.-2-

Donny Gene Claunch, proceeding pro se , seeks a certificate of appealability so that he can appeal the district co urt’s denial of Claunch’s 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be taken from the denial of a § 2254 habeas petition unless the petitioner first obtains a certificate of appealabi lity). Because Claunch has not “made a substantial showing of the denial of a cons titutional right,” this court
denies Claunch a certificate of appealability and dismisses this appeal. See id. § 2253(c)(2) (providing that a certificate of appea lability may issue only if petitioner has made a substantial showing of the de nial of a constitutional right). Claunch was found guilty by a jury of murder in the first degree on November 27, 1979, and was sentenced to life impris onment. Claunch never challenged his conviction or sentence on direct app eal. In 1988, Claunch filed a petition for appeal-out-of-time and post-convictionrelief (the “first state petition”). In his first state petition, Claunch a lleged eight grounds for relief, including a claim that his counsel was constitution ally ineffective for failing to perfect a direct appeal. The state district court denied relief in July of 1988; Claunch failed to appeal the denial of relief to th e Oklahoma Court of Criminal Appeals (the “OCCA”). Claunch filed a second petit ion for post-conviction in Oklahoma state court in 1996 (the “second state pet ition”). In his second state petition, Claunch again claimed his counsel was ine ffective for failing to perfect-3-

a direct appeal. He also raised an entirely new cl aim, contending he was denied due process when the trial court failed to conduct a post-examination competency hearing to determine Claunch’s competency to stand trial. The state district court denied relief on the grounds Claunch had previouslyraised or could have raised these issues in his first state petition. On appea l from the denial of relief, the OCCA concluded the issues raised in the second stat e petition were procedurally barred. According to the OCCA, the issues were pro cedurally barred both because Claunch failed to raise them on direct appe al and because, to the extent they were raised in the first state petition, he fa iled to appeal the denial of that petition to the OCCA. Claunch then filed the instant § 2254 habeas petiti on in the federal district court reasserting the ineffective assistance and co mpetency hearing issues. After Claunch’s petition was referred to a magistrate jud ge for initial proceedings, the magistrate judge issued a Report and Recommendation , recommending the petition be dismissed on grounds of procedural bar. The magistrate judge concluded, inter alia , that without regard to whether Claunch’s counsel was ineffective in failing to prefect a direct appeal, Claunch had waived both his ineffective assistance claim and his competency cla im by failing to raise the1 In so holding, the magistrate judge concluded as fo llows: Even if [Claunch] could demonstrate attorney error and prejudice, which he has not, he cannot successfullyblame any ineffectiveness of counsel for failing to adequatel y and timely raise his constitutional grounds first at the state level , because proceeding pro se, he filed his first application for post-conviction relief in the state court, and never raised the competency-hearin g issue nor did [Claunch] even appeal that first denial. The appea l of the denial of the second application was dismissed due to [Claunc h’s] personal failure to previously raise the issue. It is [Claunch] who is personally responsible for any failure to adequately raise his grounds in state court. Report and Recommendation at 7. -4- competency claim in, and failing to appeal to the O CCA from, the denial of his first state petition. 1 In response to the Report and Recommendation, Claun ch filed an objection to the report and recommendation, challenging the m agistrate judge’s conclusion that Claunch’s trial counsel was not constitutional ly ineffective; Claunch’s objection did not address the competency hearing is sue. The district court overruled Claunch’s objections and adopted the Repo rt and Recommendation. In so doing, the district court noted that Claunch hadwaived review of the magistrate judge’s conclusions regarding the compet ency hearing by failing to specifically object. Nevertheless, the district co urt specifically noted that Claunch’s competency-hearing claim was subject to p rocedural bar because it was procedural rather than substantive in nature. In particular, the district court noted Claunch did not allege he was actually incomp etent at the time of his trial-5-

and did not allege any factual basis to raise a thr eshold doubt about his competency. This court will issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). In Barefoot v. Estelle , 463 U.S. 880 (1983), the Supreme Court provided content to the term “substantial showing” of the denial of a constitutional right. According to the Court, a pe titioner has made such a substantial showing if he demonstrates the issues r aised are debatable among jurists of reason, the appellate court could resolv e the issues in a different manner, or the issues are adequate to deserve encou ragement to proceed further. Id. at 893 & n.4. Upon de novo review of Claunch’s application for a certificate of appealability and appellate brief, the magistrate j udge’s Report and Recommendation, the district court’s Order, and the entire record on appeal, this court concludes the district court’s resolution of the issues raised in Claunch’s petition on the basis of procedural bar is not dese rving of further proceedings for substantially those reasons set out in the magistrate judge’s Report and Recommendation dated June 7, 1997, and the districtcourt order dated-6-

January 22, 1998. Accordingly, Claunch’s applicati on for a certificate of appealability is DENIED and the appeal is therefore DISMISSED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge