* This order is not binding precedent, except underthe doctrines of law of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

### November 16, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
BARRY WATSON,

Petitioner-Appellant, No. 04-6213
v. (W.D. of Okla.) DAYTON J. POPPELL, Warden,

Respondent-Appellee. (D.C. No. 02-CV-346-T)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. ** Petitioner-Appellant Barry Watson, a state prisonerappearing pro se, filed a petition for writ of habeas corpus in the distric t court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. The distric t court denied Watson’s writ of habeas corpus and also denied him a certificate of appealability (“COA”).-2-

Because Watson has not made a substantial showing o f a denial of a constitutional right, 28 U.S.C. § 2253(c)(2), we deny a COA and di smiss the appeal. I. Background The parties to this action are familiar with the fa cts of the case and we need not restate them in full. Watson was a suspect in a domestic disturbance and burglary. Following a traffic stop of Watson’s veh icle, Watson left his vehicle and, according to officers, appeared to be throwing a substance that was later identified as crack cocaine. Watson was subsequent ly arrested and charged with a number of crimes, including assault and battery, bu rglary and possession of a controlled dangerous substance. Watson was convicted in Oklahoma state court and th e Oklahoma Court of Criminal Appeals affirmed his conviction. Watson t hen filed an application for post-conviction relief with the Oklahoma County Dis trict Court. The district court denied his petition, and the Oklahoma Court o f Criminal Appeals affirmed. In his petition to the federal district court, Wats on put forth six claims: (1) trial counsel was ineffective; (2) he was subject t o prosecutorial misconduct; (3) appellate counsel and trial counsel had a conflict of interest; (4) appellate counsel was ineffective; (5) the prosecution used its peremptory challenges in a discriminatory manner; and (6) his sentence was imp roperly enhanced. The federal magistrate judge entered a comprehensive tw enty-nine page report-3-

recommending that Watson’s request for habeas relie f be denied. The district court for the Western District of Oklahoma adopted the report in its entirety and denied Watson’s claims. The district court also de nied a COA. In his brief to this court, Watson simply reiterated his claims bef ore the district court and also filed a “motion to expand certificate of appealabil ity,” in which he argued that ineffective assistance of counsel establishes cause for state procedural default. II. Legal Issues A COA may issue if Watson “has made a substantial s howing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). To make th is showing, “a petitioner must “show that reasonable jurists coulddebate whether (or, for that matter, agree that) the petition should have been r esolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation omitted). Our role is not to engage in a “full con sideration of the factual or legal bases adduced in support of the claims,” but ratherwe merely conduct an “overview of the claims in the habeas petition and a general assessment of their merits.” Id

. Where, as was the case with several of the claims at issue here, the district court denies a habeas petition on procedural ground s without reaching the-4-

underlying constitutional claim, a COA may issue if the habeas petitioner shows (1) reasonable jurists would find it debatable whet her the petition states a valid claim of the denial of the constitutional right, an d (2) reasonable jurists would find it debatable whether the district court was co rrect in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484 (2000). Thus, with respect to those types of claims, Watson must show that he has been denied a constitutional right and that the district court erred in its procedural rul ing. We may deny a COA on either of these two prongs. Id . at 485. With these principles in mind, we review Watson’s c laims. A. Ineffective Assistance of Trial Counsel/Prosecutor ial Misconduct The magistrate judge recommended Watson’s first andsecond claims be denied because he failed to raise these issues on d irect appeal. As fully developed by the magistrate judge, these claims are procedurally defaulted. While it is true “[a] showing that a defendant rece ived ineffective assistance of counsel will establish cause excusing a procedural default,” Ellis v. Hargett , 302 F.3d 1182, 1186 (10th Cir. 2002), to meet this stan dard, Watson must satisfy the familiar two-part test for ineffective assistance established in Strickland v. Washington , 466 U.S. 668, 688 (1984). Specifically, he must show that (1) counsel’s performance fell below an objective stand ard of reasonableness and (2) there is a reasonable probability that, but for cou nsel’s errors, the outcome of the-5-

proceedings would have been different. Id. The magistrate judge’s application of Strickland is correct and we agree that Watson has not shown any reason to believe the outcome of his direct appeal would have been different if these two theories had been advanced at trial. B. Conflict of Interest/Ineffective Assistance of App ellate Counsel Watson next argues that his appellate counsel had aconflict of interest because both appellate and trial counsel were part of the Oklahoma Public Defender Office. As the magistrate judge correctly explained, under our case law, no inherent conflict exists merely because appellat e and trial counsel are both employed by the Public Defender’s Office. Watson also argues that appellate counsel was ineff ective due to counsel’s failure to raise ineffective assistance of trial co unsel and prosecutorial misconduct on direct appeal. Again, for the reasons set forth in the magistrate judge’s opinion, since Watson fails to meet the Strickland standard as to trial counsel, his appellate counsel could not be ineffective for fail ing to pursue the claim on appeal. C. Improper Use of Peremptory Challenges Watson next argues that the prosecution engaged in racial discrimination in its exercise of peremptory challenges during jury s election. The magistrate judge demonstrated that Watson failed to meet the standards established in Batson v.-6-

Kentucky , 476 U.S. 79 (1986). In short, Oklahoma prosecuto rs provided sufficient race-neutral explanations for each peremptory challenge, and the record does not support Watson’s claim that prosecutors di scriminated on the basis of

race. D. Sentence Enhancement Finally, Watson claims the trial court improperly i ncreased his sentence by using prior convictions which arose from a single c riminal episode. Again, as the magistrate judge explained, this claim fails. Wats on conceded five prior convictions. Oklahoma sentencing law allowed for t he enhancement after only two convictions. Thus, Watson cannot show any harmarising from the use of convictions that may have arisen from a single crim inal episode. Accordingly, we DENY a COA and DISMISS the appeal, and we DENY Appellant’s motion to proceed in forma pauperis

. Entered for the Court Timothy M. Tymkovich Circuit Judge