* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 5 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ARLAND BIRL MILLWOOD,

Petitioner-Appellant,

v. RON CHAMPION,

Respondent-Appellee. No. 99-6284 (D.C. No. CIV-97-911-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , 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. Petitioner Arland B. Millwood appeals the district court’s dismissal of his petition for a writ of habeas corpus, brought pursu ant to 28 U.S.C. § 2245.-2-

Because petitioner has not made a substantial showi ng of the denial of a constitutional right, we deny his request for a certificate of appealability and dismiss the appeal. Petitioner is currently serving Oklahoma state sent ences for rape after former conviction of a felony, and forcible sodomy after former conviction of a felony. His convictions were affirmed on direct ap peal in July 1986. On July 6, 1995, petitioner filed an application for state pos t-conviction relief in the Oklahoma state court, claiming that his appellate c ounsel was ineffective and that the state trial court should have sua sponte ordere d DNA fingerprint testing. On November 28, 1995, the state district court denied relief. On January 4, 1996, the Oklahoma Court of Criminal Appeals dismissed petiti oner’s appeal for failure to attach a certified copy of the district court’s den ial, as required by the local rules. On January 12, 1996, petitioner filed a petition fo r a writ of habeas corpus in the federal district court, alleging the state appellate court’s dismissal of his post-conviction appeal denied him due process. The federal district court dismissed the petition for failure to exhaust state remedies. Petitioner did not appeal this dismissal. On May 20, 1996, petitioner filed a “motion for rei ssuance of order,” which the state court construed as a motion to appeal outof time and denied. The Oklahoma Court of Criminal Appeals affirmed the den ial because petitioner again1 On August 10, 1999, we issued a show cause order, q uestioning our

jurisdiction in this case. Upon examining the resp onses by petitioner and respondent, we are satisfied that petitioner’s noti ce of appeal was delivered to prison officials within the time to appeal, and thu s we have jurisdiction over this appeal. See Fed. R. App. P. 4(c) (providing a pro se prisoner’ s notice of appeal is deemed filed when it is delivered to prison officia ls). -3- failed to attach certified copies of the state district court’s orders, and thus there was nothing to review. On June 4, 1997, petitioner filed this habeas petit ion with the federal district court. The matter was referred to a magis trate judge who recommended dismissing the petition based on petitioner’s proce dural default in the state court. The district court adopted the recommendation and d ismissed the petition with prejudice. This appeal followed. 1 To obtain appellate review, petitioner must secure a certificate of appealability by making a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). Petitioner argues onappeal that (1) the district court erred in finding his claims procedurally defaulted because his petition was timely filed; (2) he showed cause for his procedural defau lt because he satisfied the procedural requirements of timeliness and place of filing and because the state did not provide him with a certified copy of the order denying post-conviction relief; and (3) he has shown actual innocence.-4-

After reviewing petitioner’s brief and the record, we conclude he has not met the requirements for issuance of a certificate of appealability. Petitioner’s procedural default stemmed from his failure to atta ch a certified copy of the state district court’s post-conviction denial to his appe al. It is irrelevant that his state appeal and federal petition were timely and were fi led in the proper places. Although the state court’s alleged failure to suppl y petitioner with a certified copy of its decision is relevant to the issue of cause f or his procedural default, petitioner did not submit evidence to establish thi s fact. He also did not supply any evidence showing that he is actually innocent o f the crimes for which he was convicted. Accordingly, petitioner’s motion for a certificate of appealability is denied and the appeal is dismissed.

Entered for the Court

Michael R. Murphy Circuit Judge