1 We construe pro sepleadings liberally. Ledbetter v. City of Topeka, Kan., 318

F.3d 1183, 1187 (10th Cir. 2003). 

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

### June 6, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERALD C. LEECH, Petitioner - Appellant,

v. REGINALD HINES; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 04-6226 (W. D. Oklahoma) (D.Ct. No. 03-CV-1558-L)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Jerald C. Leech appeals pro se 1 seeking a certificate of appealability (COA) from the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas-2-

corpus. The district court granted Leech’s motion to proceed in forma pauperis

. There being no basis for an appeal, we deny COA.
I. BACKGROUND On August 8, 2000, Leech was driving his motor home when he was stopped by Enid, Oklahoma, police officers and arre sted on an outstanding felony arrest warrant. After Leech was arrested, the poli ce used a K-9 dog to sniff the inside of the motor home. The dog alerted to drugs in the back of the vehicle. The K-9 handler went to the back of the home and di scovered a metal ashtray, uncapped syringe, Leech’s driver’s license and a pl astic baggie containing offwhite powder lying on the bed. The officer also ob served another bag containing more off-white powder on the headboard and found other drug-related items throughout the motor home including a smoking pipe, scales and a receipt for a substance used in the manufacture of methamphetamin e. The off-white substance was tested and determined to be methamphetamine. On August 7, 2001, Leech was convicted of possessio n with intent to distribute methamphetamine (Count 1) and possessionof drug paraphernalia (Count 2) in the District Court of Garfield County, Oklahoma. He was sentenced to concurrent terms of seven years and six months, respectively, on the two counts. He appealed his conviction on the first co unt arguing insufficiency of the evidence to the Oklahoma Court of Criminal Appeals (OCCA) which affirmed his-3-

conviction on August 23, 2002. On April 24, 2003, Leech filed a pro se application for post-conviction relief with the Dis trict Court of Garfield County, Oklahoma, claiming his conviction resulted from a w arrantless search and seizure of his motor home in violation of the Fourth Amendm ent. Leech also argued that his trial counsel was ineffective for failing to ra ise the warrantless search of Leech’s motor home and that his appellate counsel w as ineffective for failing to raise those two claims in his direct appeal. The d istrict court denied Leech’s request and the OCCA affirmed the district court’s decision. In the process, the OCCA noted: Petitioner’s Propositions One and Two both raise is sues that could have been raised by Petitioner on direct appeal . . . . As his “sufficient reason” for failing to raise these claims on appeal , Petitioner asserts that his appellate counsel provided ineffective assistan ce by not raising them. The District Court addressed this ineffective assis tance claim by finding its underlying search and seizure claim was meritle ss. More specifically, the District Court found, among otherthings: After all the evidence and argument were concluded, the [trial] Court specifically found that the search was lawful on two grounds. First the search conducted was a proper i nventory search of the vehicle incident to a felony arrest. Second, it was proper for the officer to look through the vehicle for any additional persons and the drug items were in plainsight. The evidence clearly supported the specific finding of the [trial] Court on this issue. Appellate Counsel was well aware of the i ssue and by letter to Petitioner concluded she could not rai ses [sic] the issue on appeal. The Court finds the decision of appellate counsel was reasonable under the circumstances and was not defective legal advice or practice. As a result, there is no merit to the application [for post-conviction relief].-4-

(R., Doc. No. 8, Ex. E at 2-3.) Leech timely filed a pro se habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western Di strict of Oklahoma asserting the same three arguments raised in his state petiti on for post-conviction relief. The matter was referred to a magistrate judge who r ecommended the petition be denied. The District Court adopted, with some modi fication, the magistrate judge’s recommendation and denied the habeas petiti on. The district court held that Leech’s first and second claims were procedura lly barred, that he failed to establish cause and prejudice to overcome the proce dural bar, and that his ineffective assistance of appellate counsel claim w as meritless because the drugs would inevitably have been discovered as a result o f a proper inventory search without the dog sniff.
II. ANALYSIS Unless this Court issues a COA, Leech may not appea l the dismissal of his § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Sec tion] 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). To make the requisite show ing, a petitioner must demonstrate “that reasonable jurists could debate w hether . . . the petition should have been resolved in a different manner or that th e issues presented were-5-

adequate to deserve encouragement to proceed furthe r.” Id. (quotation marks and citation omitted). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional rightand that jurists of reason would find it debatable whether the districtcourt was correct in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where a plain procedu ral bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that th e district court erred in dismissing the petition or that the petitioner shou ld be allowed to proceed further. In such a circumstance, no appeal would be warrante d.” Id. With these principles in mind, we have ca refully reviewed the record, and agree with the district court’s conclusions. Leech does not dispute that he failed to raise either his warrantless search and seizure claim or his ineffective assistance of trial counsel claim on direct appeal to the OCCA. Under Oklahoma law, Leech is deemed to have waived these claims by failing to raise them on direct appeal. See 22 O KLA
. S TAT
. ANN
. tit. 22 § 1086; Steele v. Young , 11 F.3d 1518, 1521-22 (10th Cir. 1993) (citing Maines v. State, 597 P.2d 774 (Okla.Cr. 1979)). “On habeas review, this Court will not con sider issues that have been defaulted in state court on an independent and adeq uate state procedural ground,2Leech does not rely on the fundamental miscarriage of justice exception. This

exception is only available “where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Herrera v. Collins , 506 U.S. 390, 404 (1993) (quotations and emphasis omitted). No such showing was made in this case. -6- unless the petitioner can demonstrate cause and pre judice or a fundamental miscarriage of justice.” Hickman v. Spears , 160 F.3d 1269, 1271 (10th Cir. 1998). This Court has previously held that Oklahom a’s procedural bar at issue here is an independent and adequate state grounds. Odum v. Boone , 62 F.3d 327, 331 (10th Cir. 1995); Steele , 11 F.3d at 1521-22. Leech argues his third claim, the ineffec tive assistance of appellate counsel, gives him cause to avoid the procedural ba r. 2 Ineffective assistance of appellate counsel can serve as cause to avoid the s tate procedural bar. Coleman v. Thompson , 501 U.S. 722, 753-54 (1991). In order to show in effective assistance of appellate counsel, Leech must demonstrate: “(1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his [case].” Hickman , 160 F.3d at 1273; see also Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). “When considering a claim of ineffective assistance of appellate counse l for failure to raise an issue, we look to the merits of the omitted issue.” Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) (citation omitted). Because the O CCA rejected Leech’s claim of ineffective assistance of appellate counsel on its merits, its determination must be-7-

accorded a “level of deference . . . provided those determinations d[o] not conflict with federal law or apply federal law in an unreaso nable way.” Williams v. Taylor , 529 U.S. 362, 386 (2000)(citation & quotations om itted); see also 28 U.S.C. § 2254(d). We agree with the OCCA and the district in their de terminations that the performance by appellate counsel for Leech performa nce did not fall below an objective standard of reasonableness. Leech’s warr antless search and seizure claim, which gives rise to both the ineffective assistance of trial counsel and appellate counsel claims, is without merit. When making a lawful custodial arrest, Police officers may make a search incident to the arrest o f the passenger compartment of a vehicle. New York v. Belton , 453 U.S. 454, 460 (1981). This exception covers the interior of a motor home. California v. Carney , 471 U.S. 386, 393 (1985). Therefore, cursory inspections of motor homes are p ermissible when incident to a lawful arrest. See United States v. Hill , 855 F.2d 664, 668 (10th Cir. 1988) (upholding cursory search of a houseboat incident t o arrest). It is uncontested the drugs and drug paraphernalia in Leech’s motor home were lying on top of the bed in plain view and would have been inevitably discovere d in the inspection of the mobile home, regardless of the use of a drug-sniffi ng dog. Appellate counsel is not required to appeal every n onfrivolous issue, Jackson v. Shanks , 143 F.3d 1313, 1321 (10th Cir. 1998); Banks v. Reynolds , 54 F.3d 1508,-8-

1515 (10th Cir. 1995), let alone issues which appear to be without merit . Hawkins v. Hannigan , 185 F.3d 1146, 1152 (10th Cir. 1999). Because Le ech’s underlying constitutional claim is without merit, he cannot sh ow his appellate counsel’s assistance fell below an objectively reasonable sta ndard of conduct. As such, he cannot show cause to avoid Oklahoma’s procedural bar precluding his other arguments not raised on direct appeal. Based on the above, we DENY Leech’s request for a COA and DISMISS the appeal. Entered by the Court: Terrence L. O’Brien United States Circuit Judge