* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of
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these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

Petitioner Marcel Lamar Jackson appeals the district court’s dismissal of

his habeas petition filed pursuant to 28 U.S.C. § 2254. The district court

determined that petitioner had procedurally defaulted 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 established either cause for his

procedural default or a fundamental miscarriage of justice. We exercise

jurisdiction under 28 U.S. C. § 1291, and affirm for 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 within 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, petitioner filed a second application

for post-conviction relief in which he raised a new sentencing issue. Petitioner

also claimed that he had been denied an appeal through 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 application and the Oklahoma Court of

Criminal Appeals affirmed. Citing Okla. Stat. tit. 22, § 1086, the appellate court
1 Petitioner did not assert in his federal habeas petition either of the

sentencing issues he had raised in state court.

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held that petitioner had defaulted his claims by failing 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 present habeas petition, contending that

he had been denied an appeal through no fault of his own, that his counsel had

been ineffective by failing to advise him of his appellate 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 procedural ground, unless cause

and prejudice or a fundamental miscarriage of justice 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 ground 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. denied, 502 U.S. 1110

(1992)).

Here, the Oklahoma Court of Criminal Appeals’ procedural bar was an

“independent” state ground because “it was the exclusive basis for the state
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court’s holding.” Id. at 985. Further, it was an “adequate” ground because,

despite petitioner’s contentions to the contrary, the Oklahoma Court of Criminal

Appeals has consistently applied Okla. Stat. tit. 22, § 1086 to bar claims that

could have been raised in earlier post-conviction proceedings. See, e.g., Stafford

v. State, 899 P.2d 657, 659 (Okla. Crim. App.), cert. denied, 115 S. Ct. 2640

(1995); Smith v. State, 878 P.2d 375, 377 (Okla. Crim. App.), cert. denied, 115 S.

Ct. 673 (1994); Steele, 11 F.3d at 1522 (noting that the Oklahoma court has

“stated clearly that section 1086 ‘strictly’ prohibits raising issues that could have

been raised before, even issues involving fundamental, 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 failings constitute cause for his

failure to take a direct appeal. He also argues that, because he is pro se, we

should apply a less stringent standard in determining whether he has demonstrated

cause for his failure to include the present claims in his first post-conviction

application for relief. We have previously rejected 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
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not constitute cause for procedural default. Murray v. Carrier, 477 U.S. 478, 486-

87 (1986).

Therefore, even if petitioner could demonstrate cause 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 to 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 that application of a procedural

bar would result in a fundamental miscarriage of justice. 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 for the Northern District

of Oklahoma is AFFIRMED.

The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio 

Circuit Judge