*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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, 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.-2-

Mark R. Collins, a state prisoner proceeding pro se , requests a certificate of appealability ("COA") to appeal the denial of his 2 8 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 appealabi lity, 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 direc t appeal, the Oklahoma Court of Criminal Appeals affirmed the convictions and se ntences. Mr. Collins then sought habeas relief in federal district court argu ing: 1) the Oklahoma Court of Criminal Appeals did not have jurisdiction to affir m his rape conviction because his rape conviction was never appealed; and 2) his appellate counsel was ineffective because she failed to appeal his rape c onviction. The district court found the jurisdictional challenge was not supporte d by the record but stayed its decision on the ineffective assistance of counsel a rgument while Mr. Collins filed an application for post-conviction relief in an Okl ahoma 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 deni ed the post-conviction relief petition, Mr. Collins did not appeal the decision t o 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 appealabili ty, 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 ap peal his rape conviction; 2) the charging documents were not sufficient to inform hi m of the charges against him; and 3) his counsel on appeal was ineffective in fai ling 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 pr ocedural grounds, we must decide whether the petitioner has made a substantia l 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 o f reason would find it debatable whether the district court was correct in its proce dural ruling.” Id.

Mr. Collins’ claim the Oklahoma Court of Criminal Appeals lacked jurisdiction over the direct appeal of his rape con viction is without merit. Mr. Collins’ brief on direct appeal clearly shows he ap pealed admission of evidence relevant to his rape charge and sentence. Therefor e, 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 concl ude Mr. Collins’ claim of ineffective appellate counsel is procedurally barre d. Under Oklahoma law, an appeal of a denial of post-conviction relief is pro cedurally 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 th irty 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. Coll ins 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 st ate ground doctrine prevents our review of claims raised in Mr. Collins post-con viction relief petition. See Coleman v. Thompson , 501 U.S. 722, 732 (1991) (“In the absence of the independent and adequate state ground doctrine in f ederal habeas, habeas petitioners would be able to avoid the exhaustion r equirement .... The independent and adequate state ground doctrine ensu res that the States’ interest in correcting their own mistakes is respected in all f ederal habeas cases.”).

Notwithstanding a procedural default in state court , we will grant a certificate of appealability if 1) there is a showi ng of cause for the default and actual prejudice as a result of the alleged violati on 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 i s applicable here. With respect to the first, Mr. Collins argues “[he] did not knowthat [he] was supposed to appeal the denial of [his] post-conviction applicat ion.” 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 proceedin forma pauperis . To proceed in forma pauperis , Mr. Collins “must show a financial inability to p ay the required filing fees and the existence of a reasone d, nonfrivolous argument on the law and facts in support of the issues raised on ap peal.” 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