* This order and judgment is not binding precedent, e xcept under the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

### DEC 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VALENTIN BENAVIDEZ III, Petitioner-Appellant, No. 98-6277

v. (D.C. No. CIV-97-495-L) TOM C. MARTIN, Warden; State of Oklahoma, (W.D. Okla.) Respondents-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Petitioner-Appellant’s brief and th e appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered submitted wi thout oral argument. Petitioner, proceeding pro se, appeals the districtcourt’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Petitioner was convicted after-2-

entering blind pleas of guilty to a count of first degree rape, two counts of forcible oral sodomy, and two counts of indecent orlewd acts with a child under sixteen. Petitioner was sentenced to thirty years’ imprisonment to be served consecutively to four twenty-year concurrent senten ces. After receiving his sentence, Petitioner filed an application to withdr aw his guilty pleas in the Oklahoma County District Court. The court denied the motion after a hearing. Petitioner filed a notice of intent to appeal the c ourt’s denial of his application, but he never perfected this appeal. Acting pro se, Petitioner then filed an application for post-conviction relief in the Oklah oma district court in which he asserted a claim that he did not actually rape his victim and a claim of ineffective assistance of counsel based on his lawyer’s allegedfailure to object to the factual allegations asserted by the prosecutor at the plea hearing. The court also denied this motion on the merits. Petitioner appealed thi s denial, but the Oklahoma Court of Criminal Appeals dismissed the appeal as t ime-barred because Petitioner failed to file his petition in error within the gov erning time period. See Okla. Crim. App. R. 5.2(C). In his section 2254 petition, Petitioner alleged th at he was denied his due process right to a direct appeal because his retain ed counsel abandoned him after filing a notice of appeal but before perfecting the appeal. Petitioner also sought appointment of counsel and necessary records at pub lic expense to perfect an out--3-

of-time appeal. Respondent moved to dismiss the pe tition on the basis of procedural default. Respondent alleged that Petiti oner waived his right to assert the claims he raised in his application to withdraw his guilty pleas and his application for post-conviction relief for two reas ons: first, he failed to perfect the appeal of the denial of his application to with draw his guilty pleas; and second, he failed to timely appeal the denial of hi s post-conviction application. Respondent also argued that Petitioner’s claim thathis counsel abandoned him before perfecting his appeal was barred because he did not raise it in his application for post-conviction relief even though the facts and law surrounding the claim were available to him at the time he file d the application. According to Respondent, because Petitioner’s claim that his cou nsel abandoned him before perfecting his appeal was distinct from the ineffec tive assistance of counsel claim that he raised in his post-conviction application, the new ineffective assistance of counsel claim should be procedurally barred. The magistrate judge recommended denying the habeas petition because Petitioner’s claims were procedurally barred and be cause Petitioner failed to show cause and prejudice or a fundamental miscarriage of justice. After reviewing Petitioner’s objections, the district court adoptedthe magistrate judge’s recommendations and denied the section 2254 petitio n. The court subsequently denied Petitioner a certificate of appealability to appeal the denial of habeas-4-

relief. On appeal, Petitioner renews his application for a certificate of appealability and asserts that the district court i mproperly denied his habeas corpus petition. Petitioner essentially alleges th at the district court erred in finding that he procedurally defaulted his state co urt remedies. Petitioner also claims that even if his claims are procedurally bar red, his attorney’s failure to perfect his appeal amounted to ineffective assistan ce of counsel and denial of his right to counsel, which in turn established cause and prejudice sufficient to overcome the procedural bar. We review the distric t court’s conclusions of law de novo, but we presume that the state court’s fact ual findings are correct unless the record does not fairly support them. See Hatch v. Oklahoma , 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied , 517 U.S. 235 (1996). Our review of mixed questions of law and fact is de novo. See id. Defendant must make “a substantial showing of the denial of a constitutional right” to obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2). The magistrate judge and the district court conclud ed that Petitioner’s claims are procedurally barred. We agree. First, Petitioner procedurally defaulted on the claims asserted in Petitioner’s ap plication to withdraw his guilty pleas by failing to perfect his appeal from the den ial of the application. Second, Petitioner defaulted on the claims he asserted in h is post-conviction application-5-

by failing to timely appeal the trial court’s denia l of that application. Finally, Petitioner is barred from raising the claims he ass erted in his habeas petition because he failed to raise them in his application for post-conviction relief. See Okla. Stat. tit. 22, § 1086; Jackson v. Champion , 96 F.3d 1453 (10th Cir. 1996) (Table) (explaining that Oklahoma Court of Criminal Appeals has consistently applied section 1086 to bar claims that could have been raised in prior postconviction proceedings), cert. denied , __ U.S. __, 117 S. Ct. 1264 (1997); Steele v. Young , 11 F.3d 1518, 1521 (10th Cir. 1993) (stating thatOklahoma courts have clearly indicated that section 1086 strictly prohib its raising claims that could have been raised earlier, even if they involve fundament al rights). We further agree with the district court that Petit ioner has not established cause and prejudice or a fundamental miscarriage of justice sufficient to overcome the procedural bar. “On habeas review, we do not address issues that have been defaulted in state court on an independen t and adequate state procedural ground, unless cause and prejudice or a fundamental miscarriage of justice is shown.” Steele , 11 F.3d at 1521. Petitioner seems to argue that his counsel’s failure to perfect his appeal of the deni al of his application to withdraw his guilty pleas amounts to ineffective assistance of counsel and thus constitutes cause for each of his three procedural defaults. Ashowing of ineffective assistance of counsel typically demonstrates cause and prejudice sufficient to-6-

overcome state procedural default. See Coleman v. Thompson , 501 U.S. 722, 754 (1991); Romero v. Tansy , 46 F.3d 1024, 1030 (10th Cir.), cert. denied , 515 U.S. 1148 (1995). Moreover, “[t]his court has vigorousl y scrutinized the adequacy of state rules involving procedural default which have the effect of barring federal habeas review of ineffective assistance of counsel claims.” Hickman v. Spears , __F.3d__, No. 97-6008, 1998 WL 767447, at *2 (10th Cir. Oct. 27, 1998). In this case, however, even if Petitioner demonstrates that ineffective assistance was the cause of his failure to perfect his appeal, he still must show cause for failing to raise his claim that his lawye r abandoned him before perfecting his appeal in his post-conviction applic ation and for failing to timely appeal the denial of his post-conviction applicatio n. However, Petitioner proceeded pro se in his post-conviction proceeding. Further, he did not have a constitutional right to counsel in his post-convict ion proceeding. See Coleman , 501 U.S. at 752 (“There is no constitutional right to an attorney in state postconviction proceedings.”). Because Petitioner had neither counsel nor a right to counsel in his post-conviction proceeding, ineffect ive assistance of counsel cannot be the cause of his failure to raise the cla im that his counsel abandoned him in his post-conviction application. See Coleman , 501 U.S. at 752 (“[A] petitioner cannot claim constitutionally ineffectiv e assistance of counsel in [state post-conviction] proceedings.”). Nor can ineffecti ve assistance be the cause of-7-

Petitioner’s failure to timely appeal the denial of his post-conviction application.
See id. ; Evitts v. Lucey , 469 U.S. 387, 394, 396 (1985) (stating that rightto counsel is limited to first appeal as of right and encompasses right to effective assistance of counsel). Petitioner also has not sh own that the application of a procedural bar will result in a fundamental miscarr iage of justice because he has not made a claim of actual innocence on appeal. Se e Murray v. Carrier , 477 U.S. 478, 495-96 (1986). We decline to issue Petitioner a certificate of app ealability because his claims are procedurally barred and he has not otherwise made a substantial showing of the denial of a constitutional right.
DISMISSED

. Entered for the Court

Monroe G. McKay Circuit Judge