*This order and judgment is not binding precedent, except under the doctrines of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

UNITED STATES COURT OF APPEALS

Filed 9/23/96

TENTH CIRCUIT

NAPOLEAN JAMES,

Petitioner - Appellant, No. 96-6170

v. W.D. Oklahoma

R. MICHAEL CODY; ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents - Appellees.

(D.C. No. CV-95-0362-R) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, 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); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.
1On appeal, James asserts for the first time that his rights under the Equal

Protection Clause of the Fourteenth Amendment were violated because of poor access to

(continued...)

-2-

Petitioner Napoleon James was found guilty of first degree murder in Oklahoma

state court and sentenced to life imprisonment. The jury found James guilty of killing his

infant daughter by shaking her. James’ conviction was affirmed on direct appeal and his

request for state post-conviction relief was denied. Respondent acknowledges that James

has properly exhausted his state remedies.

James filed an amended petition for a writ of habeas corpus in federal district court

under 28 U.S.C. § 2254. He alleged: (1) ineffective assistance of trial counsel; (2)

ineffective assistance of appellate counsel; (3) that the trial court erred by failing to define

for the jury all elements of the offense; and (4) that the trial court erred by failing to

instruct the jury on the lesser-included offense of Second Degree Manslaughter. The

magistrate judge found that no evidentiary hearing was warranted and that James had

failed to state any cognizable claims for federal habeas relief. The district court

determined that James had only objected to the magistrate judge’s recommended denial of

an evidentiary hearing. It found no evidentiary hearing was warranted, adopted the

uncontested portions of the magistrate judge’s recommendation, and denied the petition. 

James filed a notice of appeal on May 17, 1996, and the district court denied a certificate

of probable cause. James appeals the denial of an evidentiary hearing and denial of the

certificate of probable cause.1
1

(...continued)

the courts at Lexington Correctional Facility. James did not raise this claim in his petition

for writ of habeas corpus, and the district court did not consider it. Therefore, we will not

address this claim on appeal. See Walker v. Mathers (In re Walker), 959 F.2d 894, 896

(10th Cir. 1992); Chase v. Crisp, 523 F.2d 595, 597 (10th Cir. 1975), cert. denied, 424

U.S. 947 (1976).

-3-

Because James’ application for a certificate of probable cause was filed after the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, § 102, 110 Stat. 1214 (to be codified at 28 U.S.C. § 2253(c)(2)), we construe his

appeal as an application for a certificate of appealability under the Act, and must

determine whether he has made a “substantial showing of the denial of a constitutional

right.” Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996). We review the district

court’s denial of an evidentiary hearing under an abuse of discretion standard. Lasiter v.

Thomas, 89 F.3d 699, 702 (10th Cir. 1996).

To state a claim for ineffective assistance of counsel, petitioner must show that

counsel’s performance fell below an objective standard of reasonableness and that

counsel’s inadequate performance was prejudicial. Strickland v. Washington, 466 U.S.

668, 687, 691 (1984); United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). While we

are required to construe a pro se petitioner’s application liberally, see Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991), “we are not required to fashion Defendant’s

arguments for him where his allegations are merely conclusory in nature and without

supporting factual averments.” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.
-4-

1994). Here, James simply lists conclusory allegations against his trial and appellate

counsel, but fails to articulate facts necessary to show that his trial or appellate counsel

fell below an objective standard of reasonableness or that their representation prejudiced

him in any way.

James asserts he was entitled to an evidentiary hearing on his claims of ineffective

assistance of counsel because the district court erroneously determined that his claim was

procedurally barred by his failure to raise the issue on direct appeal in Oklahoma. We

have held that Oklahoma’s rule barring ineffective assistance of counsel claims not raised

on direct appeal is not an adequate state ground to bar the claim on federal habeas review. 

Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th Cir. 1994), cert. denied, 115 S. Ct. 2564

(1995). However, the district court also addressed the merits, and denied the evidentiary

hearing on the ground that James had failed to make any showing that ineffective

assistance of his trial or appellate counsel prejudiced him in any way. We conclude that

the district court did not abuse its discretion in denying James’ evidentiary hearing based

on his failure to allege sufficient facts to support his ineffective assistance of counsel

claims.

For the foregoing reasons, and substantially for the reasons set forth in the

magistrate judge’s report and recommendation and the district court’s memorandum

opinion and order, we conclude that Mr. James was not entitled to an evidentiary hearing

on his petition, and has also failed to make a “substantial showing of the denial of a
-5-

constitutional right,” and accordingly, we DENY petitioner’s application for a certificate

of appealability and DISMISS the appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge