*

 This order and judgment is not binding precedent except under the doctrines of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

MAR 15 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

MARK COLLINS,

Petitioner - Appellant,

v.

STEPHEN W. KAISER; OKLAHOMA

DEPARTMENT OF CORRECTIONS;

JAMES L. SAFFLE,

Respondents - Appellees.

No. 01-6393

(W.D. Okla.)

(D.C. No. 99-CV-1185-T)

____________________________

ORDER AND JUDGMENT*

Before BARRETT, PORFILIO, and BRORBY, Senior 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
-2-

Mark R. Collins, a state prisoner proceeding pro se, requests a certificate of

appealability ("COA") to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition. Mr. Collins also asks to proceed in forma pauperis. We deny Mr.

Collins’ application for a certificate of appealability, deny his motion for leave to

proceed on appeal in forma pauperis, and dismiss his appeal.

An Oklahoma state court jury convicted Mr. Collins of first degree rape and

four counts of furnishing beer to persons under the age of twenty-one. He was

sentenced to twenty-five years imprisonment on the rape count and six months

imprisonment on each of the other counts. On direct appeal, the Oklahoma Court

of Criminal Appeals affirmed the convictions and sentences. Mr. Collins then

sought habeas relief in federal district court arguing: 1) the Oklahoma Court of

Criminal Appeals did not have jurisdiction to affirm his rape conviction because

his rape conviction was never appealed; and 2) his appellate counsel was

ineffective because she failed to appeal his rape conviction. The district court

found the jurisdictional challenge was not supported by the record but stayed its

decision on the ineffective assistance of counsel argument while Mr. Collins filed

an application for post-conviction relief in an Oklahoma court. Mr. Collins’

application for post-conviction relief argued his appellate counsel was ineffective

and the charging documents were not sufficient to apprize him of the criminal
-3-

charges against him. After the Oklahoma court denied the post-conviction relief

petition, Mr. Collins did not appeal the decision to the Oklahoma Court of

Criminal Appeals. The federal district court then denied Mr. Collins’ habeas

corpus petition because the ineffective assistance of counsel claim was barred by

an independent and adequate state procedural rule – Mr. Collins failed to timely

appeal the denial of post-conviction relief.

In requesting we issue a certificate of appealability, Mr. Collins argues 1)

the Oklahoma Court of Criminal Appeals did not have jurisdiction over the direct

appeal of his rape conviction because he did not appeal his rape conviction; 2) the

charging documents were not sufficient to inform him of the charges against him;

and 3) his counsel on appeal was ineffective in failing to appeal his rape

conviction.

In determining whether to issue a certificate of appealability when the

district court has denied a habeas petition on the merits, we ask whether

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When

the district court denies the habeas petition on procedural grounds, we must

decide whether the petitioner has made a substantial showing “that jurists of
-4-

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

Mr. Collins’ claim the Oklahoma Court of Criminal Appeals lacked

jurisdiction over the direct appeal of his rape conviction is without merit. Mr.

Collins’ brief on direct appeal clearly shows he appealed admission of evidence

relevant to his rape charge and sentence. Therefore, we decline to grant a

certificate of appealability on this issue.

Furthermore, we conclude Mr. Collins’ claim the charging documents were

insufficient is procedurally barred. We also conclude Mr. Collins’ claim of

ineffective appellate counsel is procedurally barred. Under Oklahoma law, an

appeal of a denial of post-conviction relief is procedurally barred unless the party

desiring to appeal files a notice of appeal within ten days of the denial of postconviction relief and a petition in error within thirty days of the denial. 

Oklahoma Court of Criminal Appeals Rule 5.2(C); Weatherford. V. Oklahoma, 13

P.3d 987, 988-89 (Okal. Crim. App. 2000). Mr. Collins did not file a timely

appeal of the denial of post-conviction relief. We have previously held a

procedural default under Oklahoma Court of Criminal Appeals Rule 5.2(C) is an
-5-

independent and adequate state ground sufficient to preclude habeas review. 

Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.), cert. denied, 525 U.S. 933

(1998). Therefore, the independent and adequate state ground doctrine prevents

our review of claims raised in Mr. Collins post-conviction relief petition. See

Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“In the absence of the

independent and adequate state ground doctrine in federal habeas, habeas

petitioners would be able to avoid the exhaustion requirement .... The

independent and adequate state ground doctrine ensures that the States’ interest in

correcting their own mistakes is respected in all federal habeas cases.”).

Notwithstanding a procedural default in state court, we will grant a

certificate of appealability if 1) there is a showing of cause for the default and

actual prejudice as a result of the alleged violation of federal law, or 2) the failure

to consider the claim will result in a fundamental miscarriage of justice, usually

evidenced by actual or factual innocence. Demarest v. Price, 130 F.3d 922, 941-

42 (10th Cir. 1997). Neither of these exceptions is applicable here. With respect

to the first, Mr. Collins argues “[he] did not know that [he] was supposed to

appeal the denial of [his] post-conviction application.” This is not cause to

excuse Mr. Collins’ procedural default. Rodriguez v. Maynard, 948 F.2d 684, 688

(10th Cir. 1991). Similarly, the second exception is inapplicable because Mr.
-6-

Collins has not presented new reliable evidence to support his contention of

actual innocence. Schlup v. Delo, 513 U.S. 298, 324 (1995). Consequently, we

decline to grant a certificate of appealability on either of the claims raised in Mr.

Collins’ petition for post-conviction relief.

Lastly, we consider Mr. Collins’ motion to proceed in forma pauperis. To

proceed in forma pauperis, Mr. Collins “must show a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Because Mr. Collins’ petition

presents only frivolous legal arguments in support of his assertions, we deny his

request to proceed in forma pauperis.

For these reasons, we DENY Mr. Collins’ motion for a certificate of

appealability, DENY his motion to proceed in forma pauperis, and DISMISS his

appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge