*This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 30 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD RAY WILSON,

Petitioner-Appellant,

v.

STEVE HARGETT, Warden,

Respondent-Appellee.

No. 97-6019

(W. District of Oklahoma)

(D.C. No. 96-CV-396)

ORDER AND JUDGMENT*

Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.
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Petitioner Donald Ray Wilson requests a certificate of appealability to

appeal the district court’s denial of his petition for writ of habeas corpus under 28

U.S.C. § 2254. We conclude Wilson is not entitled to a certificate of

appealability and dismiss the appeal.

Wilson was convicted by jury in the District Court of Garvin County,

Oklahoma, of first degree murder and assault and battery with a dangerous

weapon, and was sentenced to imprisonment for terms of life and fifty years,

respectively. Wilson appealed his convictions to the Oklahoma Court of Criminal

Appeals, and his convictions were affirmed in a summary opinion. Wilson’s

application for post-conviction relief filed in the District Court of Garvin County

was denied, and his appeal of the denial was affirmed on the grounds of

procedural default. See Okla. Stat. Ann. tit. 22, § 1086 (West 1986) (setting forth

Oklahoma rule of procedural default).

Having exhausted his state remedies, Wilson filed a § 2254 petition for writ

of habeas corpus in federal district court, claiming (1) the state failed to prove the

elements of first degree murder; (2) the trial court erred in admitting unreliable

identification testimony; (3) the state failed to prove the elements of assault and

battery with a deadly weapon, and (4) his trial and appellate counsel were

ineffective in failing to raise these issues.
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 The magistrate judge determined that issues one and two were properly

denied in the state court habeas proceedings because they were not raised in the

initial, direct appeal. As the district court correctly noted, federal habeas review

of such procedurally barred issues is foreclosed “unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750 (1991). Wilson asserts that ineffectiveness of counsel constituted cause

for his procedural default. In considering the ineffectiveness of counsel claim,

the district court considered the merits of issues one, two, and three in order to

make a determination of whether Wilson’s counsel erred in failing to raise the

issues at trial or on direct appeal. The court found each of the issues meritless. 

The court therefore found that the ineffectiveness of counsel claim was also

meritless and did not constitute cause for procedural default. Having considered

and rejected each of the issues raised in the petition, the court dismissed the

petition. The district court also denied Wilson’s application for a certificate of

appealability. In his certificate of appealability application to this court, Wilson

reasserts the issues raised in his petition below. 

Under 28 U.S.C. § 2253, Wilson’s appeal may not be considered unless a

certificate of appealability is issued. A certificate of appealability will be issued
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only if the issues raised are debatable among jurists of reason, if a court could

resolve the issues differently, or if the questions presented are deserving of

further proceedings. See Lennox v. v. Evans, 87 F.3d 431, 434 (10th Cir. 1996). 

For substantially the same reasons set forth in the magistrate’s Recommendation

of July 31, 1996, and the district court’s Order of January 2, 1997, we agree with

the district court that Wilson cannot satisfy this burden and is not entitled to a

certificate of appealability.

Wilson’s application for a certificate of appealability is DENIED and this

appeal is DISMISSED.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge