* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### OCT 22 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BURLEN GLENN,

Petitioner-Appellant, No. 04-7045

v. Eastern District of Okla. STEVE BECK, Warden, also known as Steven Beck,

Defendant-Appellee. (D.C. No. CV-02-268-S)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Petitioner-Appellant Burlen Glenn, a state prisonerappearing pro se, filed a petition for a writ of habeas corpus in the distric t court pursuant to 28 U.S.C. § 2254 (2000). The district court denied Glenn’s p etition and also denied Glenn a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (2000) (providing-2-

that a petitioner may not appeal the denial of habe as corpus relief from a state detention unless he first obtains a COA). Glenn no w seeks to appeal the district court’s ruling. For the reasons that follow, we de ny Glenn’s COA and dismiss the appeal. Background A jury in the Cherokee County District Court of Okl ahoma convicted Glenn of one count of racketeering, six counts of knowing ly concealing stolen property, three counts of uttering a forged instrument, one c ount of obtaining money by false pretenses, and one count of larceny of domest ic animals. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) rever sed the racketeering conviction and affirmed the other judgments and sentences. See Glenn v. State , 26 P.3d 768 (Okla. Crim. App. 2001). Glenn subsequ ently filed an application for state post-conviction relief, alleging the OCCA err ed in not reversing his remaining 11 convictions, and that he had discovered relevant Brady materials. The trial court denied relief, finding petitioner’s challenges to the OCCA decision should have been presented to that court in a petit ion for rehearing. With respect to the other post-conviction claims, the trial cour t found consideration of those issues barred because they either could have been r aised on direct appeal or were reassertions of claims already raised on direct app eal. The trial court further-3-

found that Glenn’s claims pursuant to Brady v. Maryland , 373 U.S. 83 (1963), failed to establish a constitutional violation. Glenn then filed a motion in the state district cou rt to appeal the postconviction action out of time, which was denied on May 22, 2003. The OCCA affirmed the denial of Glenn’s motion for a post-co nviction appeal out of time, finding he had failed to “address or establish thathe was denied a post-conviction appeal through no fault of his own, the crucial iss ue to appeal out of time.” Glenn v. State , No. PC-2003-612, slip op. at 1 (Okla. Crim. App. Aug. 8, 2003). Thereafter Glenn filed the instant § 2254 petition in federal district court. The district court dismissed the petition, finding it barred by an independent and adequate state procedural rule regarding out of tim e appeals, and that Glenn had failed to adequately justify his failure to appeal in a timely manner. See Coleman v. Thompson , 501 U.S. 722, 750 (1991) (requiring petitioner wh o fails to comply with independent and adequate state procedural rule to demonstrate “cause for the default and actual prejudice as a result of the all eged violation of federal law, or . . . that failure to consider the claims will resu lt in a fundamental miscarriage of justice” before federal habeas review of the merits of the claim is allowed). Analysis Glenn is entitled to a COA only upon making a subst antial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When the district court-4-

denies a habeas petition on procedural grounds, “a COA should issue . . . if the prisoner shows, at least, that jurists of reason wo uld find it debatable whether the petition states a valid claim of the denial of a co nstitutional right, and that jurists of reason would find it debatable whether the distr ict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). Here for example, Glenn could question the accuracy of the d istrict court’s application of the state procedural bar by challenging its indepen dence or adequacy, or by confronting the district court’s determination thathe had failed to establish cause and prejudice or a fundamental miscarriage of justi ce. Glenn has failed to do so. Construing Glenn’s pro se application for COA and brief liberally, there is nothing that suggests the district court erred in applying the procedural bar. Rather, much of the application focuses on proceedings in the state courts and does not even attempt to justify Glenn’s failure to file a timely appeal. Glenn does assert that his counsel at the preliminary hearing was ineffective for failure to properly object to a jurisdictional concern. However, this alleged defi ciency does not relate to Glenn’s failure to file a timely appeal and, as a r esult, cannot be construed as an attempt to explain why the district court erred in applying the procedural bar. Finding no reason to believe that the district cour t erred in applying the state procedural rule to bar consideration of Glenn ’s petition, we DENY COA and-5-

DISMISS the case. We also GRANT Glenn’s motion to proceed in forma pauperis. Entered for the Court Timothy M. Tymkovich Circuit Judge