* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JAN 8 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COSTON LINCOLN MOORE, Petitioner - Appellant, vs. STEVE HARGETT, Respondent - Appellant. No. 00-5058 (D.C. No. 97-CV-273-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **
Coston Lincoln Moore, an inmate appearing pro se, s eeks to appeal from the dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Upon consideration, we conclude that petitioner has not made “a substantial showing of the denial of a constitutional right,” a nd we deny his application for a certificate of appealability. 28 U.S.C. § 2253(c)( 2); see also Slack v. McDaniel ,- 2 -

120 S. Ct. 1595, 1603-04 (2000).

Background In 1990, Mr. Moore was convicted of manslaughter inthe first degree (Count I), five counts of assault and battery with a dangerous weapon (Counts II - VI), and one count of maiming (Count VII). The cha rges arose out of a single incident in which Mr. Moore drove his car through the wall of an apartment, killing one occupant and injuring five others. One of the occupants, a seventeenyear-old girl, was severely injured when the car struck the back of her right leg, nearly amputating the limb. Tr. at 202, 207-08. F ollowing the jury’s recommendations, the trial court sentenced Mr. Moor e to seven consecutive terms: thirty years for Count I, no less than twenty years each for Counts II through VI, and twenty-five years for Count VII. T he Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Mr. Moore’s conv iction and sentences. His application for state post-conviction relief was de nied, and the OCCA again affirmed on appeal. In 1997, he filed the present petition in federal court; the district court dismissed the petition and denied a certificate of appealability. Mr. Moore raises three arguments in his applicationto this court. First, he argues that Flores v. State , 896 P.2d 558, 562 (Okla. Crim App. 1995), require s that his conviction be reversed on the basis of the trial court’s instruction that the- 3 -

defendant was “presumed to be not guilty” rather th an “presumed innocent.” Aplt. Br. at 18. Second, he asserts that his “Tria l and Appellate Counsel were both ineffective . . . for failure to conduct an ad equate legal research investigation of ‘presumed to be not guilty.’” Id. at 19. Finally, Mr. Moore argues that he was improperly punished seven times for a single act. Id. at 2.

Discussion Under Oklahoma law, the defendant waives all claims that could have been -- but were not -- raised on direct appeal. Okla. Stat. tit. 22, § 1086; e.g. , Slaughter v. State , 969 P.2d 990, 999 (Okla. Crim. App. 1998). Mr. M oore did not object to the trial court’s “presumed to be notguilty” instruction, nor did he challenge the instruction on direct appeal. Accord ingly, when the OCCA affirmed the lower court’s denial of Mr. Moore’s ap plication for post-conviction relief, the court held that Mr. Moore had “waived a nd bypassed the right to assert the issue and it may not be the basis of this post- conviction application.” Moore v. Oklahoma , No. PC 96-1500, slip op. at 3 (Okla. Crim. App. F eb. 18, 1997). The doctrine of procedural default prohibits a fede ral court, on habeas review, from considering claims which the state’s highest c ourt declined to reach because of an adequate and independent state procedural def ect, unless the habeas petitioner can meet the “cause and prejudice” stand ard set forth by the Supreme- 4 -

Court in Coleman v. Thompson , 501 U.S. 722, 750 (1991). Mr. Moore appears to argue that because Flores established a new rule in 1995, he could not have objected to the trial court ’s instruction in 1990. This argument arises under state law. See Walker v. State , 933 P.2d 327, 338 (Okla. Crim. App. 1997) (holding that “Flores simply reiterated and enforced long standing case law and statutory rules” and that a p re-Flores failure to challenge a “presumed not guilty” instruction was waiver). It is therefore an inadequate basis for federal habeas relief. 28 U.S.C. § 2254(d). Mr. Moore then asserts that his trial and appellate counsels’ failure to conduct adequate legal research regarding the “pres umed to be not guilty” instruction was constitutionally deficient under Strickland v. Washington , 466 U.S. 668, 687 (1984), and that he was thereby preju diced. We recently considered and rejected an identical argument in Sherrill v. H argett , 184 F.3d 1172, 1175-76 (10th Cir.), cert. denied , 528 U.S. 1009 (1999). Although an ineffective assistance of counsel claim, if meritorious, is “ca use” excusing procedural default, United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996), the district c ourt properly concluded that Mr. Moore’s ineffective assistance of appellate counsel claim was without merit. Moore v. Hargett , No. 97-CV-273-K, slip op. at 13-14 (N.D. Okla. Mar. 31, 2000) (Doc. 19). “[I]t was re asonable for petitioner’s appellate counsel to rely on the general principle that an instruction using the1 Mr. Moore’s brief includes several inserted pages, including six between

pages 19 and 20. - 5 - particular phrase ‘presumption of innocence’ is notrequired” to preserve his constitutional rights. Sherrill , 184 F.3d at 1176. Given that Mr. Moore had different trial and appellate counsel, however, we affirm the district court’s conclusion that Petitioner’s ineffective assistance of trial counsel claim is barred by procedural default. Doc. 19 at 14-18. Third, Mr. Moore asserts that he was improperly pun ished seven times for a single act. Aplt. Br. at 19.5. 1 The OCCA rejected this claim on the merits in Mr. Moore’s direct appeal. Moore v. Oklahoma , No. CF 90-1098, slip op. at 10-11 (Okla. Crim. App. Feb. 28, 1994). In his brief to this court, Mr. Moore relies primarily on state authority, including a lengthy q uote from a dissenting opinion in an unidentified case. Aplt. Br. at 19.5-.6. A lthough the quote includes a number of citations to federal double jeopardy case s, none of those cases indicates that the OCCA’s state law-based rejectionof the multiple punishments argument “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supre me Court of the United States.” 28 U.S.C. § 2254(d)(1). We therefore rej ect this claim as well.- 6 -

Mr. Moore’s application for a certificate of appeal ability is DENIED and the appeal is DISMISSED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge