*This order and judgment is not binding precedent except under the doctrines of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

### JAN 28 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BRUCE WAYNE MARTIN, Petitioner-Appellant,
v. LEROY YOUNG; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 98-5113 (N.D. Okla.) (D.Ct. No. 96-CV-381-E)

____________________________ ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.-2-

Appellant Bruce Wayne Martin, an Oklahoma state pri soner appearing pro se, seeks a certificate of appealability under 28 U .S.C. § 2253 in order to challenge the district court’s dismissal of his hab eas petition filed pursuant to 28 U.S.C. § 2254. We deny Mr. Martin’s request for a certificate of appealability and dismiss his appeal.
A jury convicted Mr. Martin of “larceny of an autom obile after former conviction of two or more felonies.” He received asentence of thirty-eight years imprisonment. Mr. Martin perfected a timely directappeal to the Oklahoma Court of Criminal Appeals, and that court affirmed the ju dgment and sentence. Mr. Martin then unsuccessfully sought post-conviction r elief in Oklahoma state courts.
Thereafter, Mr. Martin filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the federal district court raising essentially three claims: (1) the trial court used erroneous and improper jury instru ctions, which denied his right to an impartial jury, a fair trial, due process, eq ual protection, and the right to remain silent; (2) his conviction resulted from use of evidence obtained through an unlawful arrest; and (3) the court violated his privilege against selfincrimination by admitting into evidence his statem ents to the police prior to-3-

receiving a Miranda warning. Mr. Martin did not ra ise the first two issues in his direct appeal to the Oklahoma Court of Criminal App eals. He claims he failed to raise those issues because of his counsel’s ineffec tive assistance. Alternatively, he asserts the district court’s failure to considerthose issues resulted in a fundamental miscarriage of justice.
The background facts of Mr. Martin’s case are set o ut and fully addressed by the district court in a thorough thirteen-page O rder filed May 7, 1998. After careful analysis, the district court found Mr. Mart in’s first two claims procedurally barred because he failed to raise them on direct appeal, or show “cause” why they could not be raised on direct appe al. The district court reviewed Mr. Martin’s multiple claims of ineffectiv e assistance of counsel, and determined they each failed to satisfy either the p erformance or prejudice prong of Strickland v. Washington , 466 U.S. 668, 687 & 694 (1984). As a result, the court concluded Mr. Martin’s claims of ineffective assistance of counsel did not satisfy the “cause” requirement to show why he fail ed to raise the first two issues on direct appeal. The district court also found Mr . Martin never raised a claim of actual innocence. Thus, the district court determi ned his assertion of fundamental miscarriage of justice must also fail.1 A defendant may appeal the denial of a habeas corpus petition only if “a circuit

justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). See United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).
-4- Lastly, the district court considered Mr. Martin’s claim that the trial court improperly admitted his statements to the police pr ior to issuance of a Miranda warning. After reviewing the record, the district court concluded the “state court’s resolution of this issue did not involve anunreasonable application of Federal law nor was it based on an unreasonable det ermination of the facts,” and found “nothing constitutionally infirm in the trial court’s decision to admit this evidence.” The district court denied Mr. Martin’s request for a certificate of appealability.
On appeal, Mr. Martin raises essentially the same a rguments raised in his petition before the district court. We have thorou ghly reviewed Mr. Martin’s application for a certificate of appealability, his brief and other pleadings, the district court’s order, and the entire record on ap peal. For substantially the same reasons set forth by the district court in its Orde r filed May 7, 1998, we conclude Mr. Martin fails to make a substantial showing of t he denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). 1 We adopt the district court’s-5-

reasoning in its Order and attach it hereto.
Accordingly, we deny Mr. Martin’s request for a certificate of appealability and DISMISS the appeal.
Entered by the Court: WADE BRORBY United States Circuit JudgeAttachment not available electronically.