*

 This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and

conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would 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

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 because Shoemake has not made a
-2-

substantial showing of the denial of a constitutional right. Accordingly, we

DENY the COA and DISMISS the appeal.

BACKGROUND

In 1999 Shoemake was convicted in an Oklahoma court for a drug crime. 

He appealed that conviction and sought other post-conviction relief through the

Oklahoma state system. Unable to find relief through 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 constitutional rights had been

violated (1) by the trial court’s instruction to the jury to enhance his sentence

based on an inapplicable recidivism enhancement, and (2) by ineffective trial and

appellate counsel who failed to challenge this enhancement. The petition was

denied in a well-reasoned order by the magistrate judge, 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 based on clearly established

federal law. Shoemake raises the same issues on appeal to this court.

ANALYSIS

A circuit court may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional 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 “demonstrat[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 does not reach

the merits because the claim was procedurally defaulted, the appellant seeking a

COA must also demonstrate “that jurists of reason would find it debatable

whether the district court was correct in its procedural 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 merits” 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 district 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 his conviction and

sentencing. Any claim he could have raised on direct appeal but failed to raise
-4-

would be procedurally barred absent a showing that the errors “worked to his

actual and 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 claim, reasonable jurists would

not debate whether the analysis by the Oklahoma courts 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 COA and DISMISS

this appeal.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge