* This order and judgment is not binding precedent, e xcept under the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

### OCT 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNIS LLOYD BURTON,

Petitioner - Appellant, No. 98-7034

v. (E.D. Oklahoma) TOM C. MARTIN, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. (D.C. No. 97-CV-378-S)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Dennis Lloyd Burton, an Oklahoma state inmate appea ring pro se, seeks a certificate of appealability in order to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. He contends that th e district court incorrectly decided the facts and improperly applied the law. Because Burton has failed to make “a substantial showing of the denial of a cons titutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability and dismiss the appeal. The relevant background and Burton’s six grounds fo r seeking habeas relief have been thoroughly set forth in the magistrate ju dge’s Findings and Recommendations which the district court adopted. R. Vol. I, Tabs 7, 9. In this appeal, Burton repeats the same six claims of error , the first five of which he also raised in his direct state criminal appeal (the “un defaulted claims”). In addition to the five undefaulted claims, Burton also repeats his claim for habeas relief based upon a trial error which he failed to raise o n direct appeal. Specifically, he complains that a jury instruction which stated thathe was presumed “not guilty” failed to follow the uniform Oklahoma instruction w hich provides that a defendant is presumed “innocent.” Relying on Flore s v. State , 896 P.2d 558, 562 (Okla. Crim. App. 1995), which reversed a convictio n because of a similar instruction, he contends that his conviction must a lso be reversed.1 In his brief to us, Burton argues that the magistrate judge failed to

recognize the many claims of ineffective assistance of trial counsel which were incorporated into his first five arguments. After full review of Burton’s district court brief, we find the only such claim to be in c onnection with his disputed waiver of a preliminary hearing. However, Burton’ s conclusory allegations fail to demonstrate any prejudice. See Strickland v. Washington , 466 U.S. 688, 687- 88 (1984). -3- When Burton raised the jury instruction error for the first time in state postconviction proceedings, the Oklahoma Court of Crimi nal Appeals found it to be procedurally barred. In an effort to overcome the state procedural bar, Burton argues that his state appellate counsel’s failure t o include the error in his direct appeal constituted ineffective assistance. As the magistrate judge correctly noted, Burton maynot obtain federal habeas relief for errors of state law. Rather, fed eral court habeas review is limited to determining whether a defendant’s consti tutional rights were violated. R. Vol. I, Tab 7 at 3 (citing Fero v. Kerby , 39 F.3d 1462, 1474 (10th Cir. 1994)). We agree with the magistrate judge’s conclusion that the five undefaulted claims either raise no question of constitutional violatio ns, or the record fails to establish any such violation. 1 See id. , at 3-4. As to his claim respecting the jury instruction, in order to overcome the procedural bar, Burton must show both that his appe llate counsel’s performance was constitutionally deficient and that counsel’s d eficient performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). In this case, the-4-

record clearly establishes that Burton’s appeal hadbeen perfected and submitted at the time that the Flores opinion was issued, and Burton’s brief to the district court concedes that Oklahoma rules prevented counse l from supplementing his brief at that time. R. Vol. I, Tab 2 at 38. Couns el is not ineffective for failing to anticipate arguments or appellate issues which are based on decisions issued after the appeal was submitted. See Lilly v. Gilmore , 988 F.2d 783, 786 (7th Cir. 1993). Nonetheless, Burton contends that the basis for rev ersal should have been obvious to his counsel even before Flores was decided. We disagree. The court in Flores noted that it had found only one other case concer ning an instruction which stated that the defendant is presumed “not gu ilty,” and in that case, the instruction was upheld. See Flores , 896 P.2d at 562 n. 7. Given the absence of specific contrary authority, counsel was entitled t o rely on general principles which provide that an instruction using the particu lar phrase “presumption of innocence” is simply one means of protecting an acc used’s constitutional right to be judged solely on the basis of proof adduced at t rial. See Taylor v. Kentucky , 436 U.S. 478, 483 n. 12, 485–86 (1978) (contemplati ng “any other form of words” which safeguards the Due Process requirementthat guilt must be established by probative evidence and beyond a reas onable doubt.) Accordingly, Burton’s appellate counsel was not required to anti cipate that the Flores court-5-

would hold unconstitutional an instruction using th e form of words “presumed not guilty,” and Burton has failed to demonstrate that he received ineffective assistance of appellate counsel.
DISMISSED. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge