* This order is not binding precedent, except under the doctrines of law of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 su bmitted without oral argument. 

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

### November 7, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JASON BLAKE SHOEMAKE,

Petitioner-Appellant, No. 05-7043
v. (E.D. of Okla.) RON WARD,

Respondent-Appellee. (D.C. No. CV-02-267-P)

ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. ** Petitioner-Appellant Jason Blake Shoemake, a state prisoner appearing pro se, seeks a certificate of appealability (COA) to appeal the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We agree with the district court that the COA should not issue becaus e Shoemake has not made a-2-

substantial showing of the denial of a constitution al right. Accordingly, we DENY the COA and DISMISS the appeal. BACKGROUND In 1999 Shoemake was convicted in an Oklahoma courtfor a drug crime. He appealed that conviction and sought other post-c onviction relief through the Oklahoma state system. Unable to find relief throu gh these venues, he sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from the United States District Court for the Eastern District of Oklahoma
. In his federal petition, Shoemake claimed his const itutional rights had been violated (1) by the trial court’s instruction to th e jury to enhance his sentence based on an inapplicable recidivism enhancement, an d (2) by ineffective trial and appellate counsel who failed to challenge this enha ncement. The petition was denied in a well-reasoned order by the magistrate j udge, and that order was adopted by the district court. In short, the lower courts agreed that Shoemake had procedurally defaulted on his first two claims and that the ruling by the Oklahoma Court of Criminal Appeals on the final claim was ba sed on clearly established federal law. Shoemake raises the same issues on ap peal to this court. 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.-3-

§ 2253(c)(2). Where a district court “has rejected the constitutional claims on the merits,” an applicant meets this standard by “demon strat[ing] that reasonable jurists would find the 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)). If a district court d oes not reach the merits because the claim was procedurally defaulted, the appellant seeking a COA must also demonstrate “that jurists of reason w ould find it debatable whether the district court was correct in its proce dural ruling.” Slack, 529 U.S. at 484. In either case, the COA analysis “requires an overview of the claims in the habeas petition and a general assessment of their m erits” rather than “full consideration of the factual or legal bases adduced in support of the claims.” Miller-El , 537 U.S. at 336. Here, reasonable jurists would not find the distric t court’s assessment of Shoemake’s claims or its procedural rulings debatable or wrong. After carefully considering the record and Shoemake’s arguments, we conclude he has failed to make a sufficient showing that he is entitled to a COA on any of his claims for the same reasons set forth by the magistrate judge and adopted by the district court. As to the first claim, it is not debatable that Shoemake failed to raise his sentence enhancement argument on direct appeal of h is conviction and sentencing. Any claim he could have raised on dire ct appeal but failed to raise-4-

would be procedurally barred absent a showing that the errors “worked to his actualand substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.” United States v. Frady , 456 U.S. 152, 170 (1982). He has made no such showing. As to the second clai m, reasonable jurists would not debate whether the analysis by the Oklahoma cou rts was “contrary to . . . clearly established Federal law,” as established in Strickland v. Washington , 466 U.S. 668 (1984). See 28 U.S.C. § 2254(d)(1). CONCLUSION Accordingly, we DENY Shoemake’s application for a C OA and DISMISS this appeal. Entered for the Court Timothy M. Tymkovich Circuit Judge