* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

UNITED STATES COURT OF APPEALS Filed 9/11/96 FOR THE TENTH CIRCUIT

MARCEL LAMAR JACKSON,

Petitioner-Appellant,

v. RONALD CHAMPION, and ATTORNEY GENERAL FOR THE STATE OF OKLAHOMA,

Respondents-Appellees. Nos. 95-5110 & 95-5148 (D.C. No. 94-C-377-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. Petitioner Marcel Lamar Jackson appeals the distric t court’s dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2 254. The district court determined that petitioner had procedurally default ed his claims in state court by failing to raise them in his first application for post-conviction relief. The court further concluded that petitioner had not establish ed either cause for his procedural default or a fundamental miscarriage of justice. We exercise jurisdiction under 28 U.S. C. § 1291, and affirm fo r substantially the reasons recited by the district court. Petitioner was convicted pursuant to a guilty plea in Oklahoma state court in 1987. He did not move to withdraw his plea with in ten days or file a direct appeal. In 1990, he filed an application for post- conviction relief in state court raising an issue related to his sentencing. That application was denied by the trial court and petitioner did not appeal. In 1993, peti tioner filed a second application for post-conviction relief in which he raised a newsentencing issue. Petitioner also claimed that he had been denied an appeal thro ugh no fault of his own because the trial court failed to inform him of all his appellate rights, as did his trial counsel. The trial court denied the applicat ion and the Oklahoma Court of Criminal Appeals affirmed. Citing Okla. Stat. tit. 22, § 1086, the appellate court1 Petitioner did not assert in his federal habeas pet ition either of the

sentencing issues he had raised in state court. -3- held that petitioner had defaulted his claims by fa iling to raise them either on direct appeal or in his first application for post- conviction relief. R. Vol. I, Doc. 6, Ex. F at 2. Petitioner then brought the presenthabeas petition, contending that he had been denied an appeal through no fault of hi s own, that his counsel had been ineffective by failing to advise him of his ap pellate rights, and that the Oklahoma court had erred in barring his claims. 1 “On habeas review, we do not address issues that have been defaulted in state court on an independent and adequate state pr ocedural ground, unless cause and prejudice or a fundamental miscarriage of justi ce is shown.” Steele v. Young , 11 F.3d 1518, 1522 (10th Cir. 1993). “A state court finding of procedural default is independent if it is separate and distinct from federal law.” Maes v. Thomas , 46 F.3d 979, 985 (10th Cir.), cert. denied , 115 S. Ct. 1972 (1995). A finding of procedural default qualifies as an adequate state g round if it has been applied evenhandedly “‘in the vast majority of cases.’” Id

. at 986 (quoting Andrews v. Deland , 943 F.2d 1162, 1190 (10th Cir. 1991), cert. denie d , 502 U.S. 1110 (1992)). Here, the Oklahoma Court of Criminal Appeals’ proce dural bar was an “independent” state ground because “it was the excl usive basis for the state-4-

court’s holding.” Id. at 985. Further, it was an “adequate” ground beca use, despite petitioner’s contentions to the contrary, the Oklahoma Court of Criminal Appeals has consistently applied Okla. Stat. tit. 2 2, § 1086 to bar claims that could have been raised in earlier post-conviction p roceedings. See, e.g. , Stafford
v. State , 899 P.2d 657, 659 (Okla. Crim. App.), cert. denie d , 115 S. Ct. 2640 (1995); Smith v. State , 878 P.2d 375, 377 (Okla. Crim. App.), cert. denie d , 115 S. Ct. 673 (1994); Steele , 11 F.3d at 1522 (noting that the Oklahoma court h as “stated clearly that section 1086 ‘strictly’ prohib its raising issues that could have been raised before, even issues involving fundament al, constitutional rights”). Therefore, unless petitioner can show either cause and actual prejudice or a fundamental miscarriage of justice, his claims are procedurally barred from federal review. Petitioner contends that his trial counsel’s failin gs constitute cause for his failure to take a direct appeal. He also argues th at, because he is pro se, we should apply a less stringent standard in determini ng whether he has demonstrated cause for his failure to include the present claims in his first post-conviction application for relief. We have previously rejecte d petitioner’s contention that his status as a pro se litigant should afford him more latitude in demonstrating cause.
See Steele , 11 F.3d at 1522; Rodriguez v. Maynard , 948 F.2d 684, 688 (10th Cir. 1991). Failure to recognize either the factual or the legal basis for a claim does-5-

not constitute cause for procedural default. Murray v. Carrier , 477 U.S. 478, 486- 87 (1986). Therefore, even if petitioner could demonstrate cau se for his failure to take a direct appeal due to errors of counsel, we agree with the district court that petitioner has not demonstrated cause for failing t o include the present issues in his first application for post-conviction relief. Because petitioner has not made any claim of factual innocence, he has not shown th at application of a procedural bar would result in a fundamental miscarriage of ju stice. See United States v. Richards , 5 F.3d 1369, 1371 (10th Cir. 1993)(citing Sawyer v. Whitley , 505 U.S. 333, 339-41, 112 S. Ct. 2514, 2519-20 (1992)). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge