* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

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

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

### August 31, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALVIN PARKER,

Petitioner-Appellant, No. 05-6119

v. (W.D. of Okla.) RANDALL G. WORKMAN, Warden, and THE ATTORNEY GENERAL FOR THE STATE OF OKLAHOMA,

Respondent-Appellee. (D.C. No. CV-03-01581-T)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Petitioner-Appellant Alvin Parker, a state prisonerappearing pro se, seeks a certificate of appealability (COA) to appeal the de nial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He als o moves to proceed in forma pauperis. We agree with the district court that th e COA should not issue because-2-

Parker has not made a substantial showing of the de nial of a constitutional right. Accordingly, we DENY the COA and DISMISS the appeal

. BACKGROUND In 1979 Parker was convicted in an Oklahoma court f or robbery with a firearm. In 2003 he sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from the United States District Court for the Weste rn District of Oklahoma. In that petition Parker alleged ineffective assistance of trial counsel based on his attorney’s failure (1) to investigate and pursue a defense of voluntary intoxication and (2) to seek a lower sentence or advise him of the possibility of appealing the conviction based on that defense. The district court denied Parker’s petition as well as his application for a COA. The court concluded that voluntary intoxicati on was not a legitimate defense to the charged crime, so any failure to pur sue such a defense was not ineffective. Furthermore, because Parker had not t old his attorney that he wanted to appeal, and because voluntary intoxication was n ot a viable defense, failure to advise Parker of his right to appeal on this ground was not ineffective under Roe v. Flores-Ortega , 528 U.S. 470, 479–80 (2000) (holding that counsel has a duty to advise a client about an appeal where “a rational d efendant would want to appeal,” i.e., “there are nonfrivolous grounds for appeal”).-3- ANALYSIS A circuit court may issue a COA “only if the applic ant has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Where, as in this case, a district c ourt “has rejected the constitutional claims on the merits,” an applicant meets this standard by “demonstrat[ing] that reasonable jurists would findthe district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell , 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). This analysis “requires an overview of the claims in the habeas petition and a general assessment of their merits” rather than “full consi deration of the factual or legal bases adduced in support of the claims.” Id. at 336. Here, reasonable jurists would not find the distric t court’s assessment of Parker’s claims debatable or wrong. Parker concede s the district court properly concluded that voluntary intoxication would not hav e been a valid defense. (Application for COA at 2.a.) Thus, reasonable jur ists would not debate whether counsel was ineffective for failing to raise this d efense in the original proceedings or on appeal. Parker also argues for the first time in his COA ap plication that his attorney should have informed him of his right to appeal bec ause the Oklahoma Court of Criminal Appeals has, in the past, reduced sentence s where the defendant was-4-

intoxicated when he committed the crime. (Applicat ion for COA at 2.a (citing Stanley v. State , 489 P.2d 495 (Okla. Crim. App. 1971) (reducing se ntence in the interest of substantial justice); Vick v. State , 465 P.2d 767 (Okla. Crim. App. 1970); Wyatt v. State , 100 P.2d 283 (Okla. Crim. App. 1940)).) He did n ot raise this argument in his original petition, claiming in stead that he “would have timely appealed the conviction because his intoxication wa s a valid defense that rendered him incapable of forming the requisite intent.” (P etition for Writ of Habeas Corpus at 6. However, an appellate court typically “will not con sider an issue raised for the first time on appeal,” especially “where a liti gant changes to a new theory on appeal that falls under the same general category a s an argument presented at trial.” Tele-Communications, Inc. v. Comm’r , 104 F.3d 1229, 1232–33 (10th Cir. 1997). We, thus, decline to issue a COA based on an argument that was not raised below and would be unreviewable on the merit s. CONCLUSION Accordingly, we GRANT Parker’s motion to proceed informa pauperis, but we DENY the COA and DISMISS the appeal.

Entered for the Court Timothy M. Tymkovich Circuit Judge