* This order and judgment is not binding precedent, e xcept under the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

### JUN 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MCKINLEY MAHAN,

Petitioner-Appellant,

v. STEVE HARGETT; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 96-6269 (D.C. No. CIV-96-456-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.

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-

Petitioner appeals the district court’s denial of h is petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, and applies to this court for a certificate of appealability, as required by 28 U.S .C. § 2253(c)(1)(A) and (c)(2). Petitioner was convicted in Oklahoma state court of second degree murder and was sentenced to life imprisonment. His convictionwas affirmed on direct appeal. Petitioner then sought post-conviction rel ief in the Oklahoma courts. Post-conviction relief was denied, and the denial w as affirmed on appeal. His state remedies exhausted, petitioner then filed a p etition for writ of habeas corpus in federal district court, which was denied. Petit ioner now appeals the district court’s denial of his petition. With regard to the denial of a habeas corpus petiti on, we review the district court’s findings of fact for clear error, and its l egal conclusions de novo. See Brewer v. Reynolds , 51 F.3d 1519, 1522 (10th Cir. 1995). Applying th ese standards, we must, for the reasons set forth below , affirm the judgment in part, reverse in part, and remand the cause to the distri ct court for further proceedings. I We begin by addressing the first issue raised by pe titioner; whether the district court was correct in applying the standardset forth in 28 U.S.C. § 2253, as amended by the Antiterrorist and Effective DeathPenalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), in denying peti tioner’s application for a-3-

certificate of appealability. Petitioner argues th at the district court should have addressed his application for a certificate of prob able cause pursuant to the version of the statute in effect at the time he fil ed his petition before the district
court. We held in Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), that the amendment to § 22 53, which changed the required showing from “a substantial showing of the denial of a federal right,” to “a substantial showing of the denial of a constitut ional right,” did not effectively change the standard. Therefore, application of the amended statute does not have a retroactive effect, and the district court was co rrect to apply the law in effect at the time it rendered its decision. See id. II In its brief before the district court, the State a rgued that petitioner’s claims were procedurally barred because the Oklahoma Courtof Criminal Appeals affirmed the denial of habeas relief based on the a dequate and independent ground that the issues had been waived because theyhad not been raised on direct appeal. Apparently, the magistrate judge agreed wi th the State; he recommended that the claims be denied as procedurally barred, w ith the exception of the claims of ineffective assistance of appellate counsel. Th e district court summarily-4-

adopted the magistrate judge’s findings and recomme ndations. This was error on two different levels. If a state prisoner fails to meet a state procedura l requirement, and the last state court to address the matter refuses to addres s the merits of the claims because of the procedural default, the claims are p rocedurally barred in federal habeas proceedings. See Coleman v. Thompson , 501 U.S. 722, 729-30 (1991); Ylst v. Nunnemaker , 501 U.S. 797, 801 (1991). “In these cases, the s tate judgment rests on independent and adequate state pr ocedural grounds.” Coleman , 501 U.S. at 730. “On habeas review, we do not addr ess issues that have been defaulted in state court on an independent and adeq uate state procedural ground, unless cause and prejudice or a fundamental miscarr iage of justice is shown.” Steele v. Young , 11 F.3d 1518, 1521 (10th Cir. 1993). A procedura l default only bars review on federal habeas, however, when the la st state court to render judgment in the case clearly and expressly states that state procedural bar is the basis of its judgment. See Harris v. Reed , 489 U.S. 255, 263 (1989). In this case, the state district court reached the merits of petitioner’s application for post-conviction relief and dismisse d the petition on the merits. On appeal, the Oklahoma Court of Criminal Appeals enum erated the issues raised and then set forth the district court’s findings and co nclusions on the merits of each claim. The appeals court then stated:-5- After a thorough consideration of the entire recordbefore us, we find no disagreement with the Trial Court’s find ings and conclusions. All issues previously ruled upon are res judicata. All issues not raised, which could have been raised, ar e waived. 22 O.S. 1991, § 1086. As Petitioner has failed to show entitlement to rel ief in a postconviction proceeding, the order of the District Co urt denying Petitioner’s application for post-conviction relief is AFFIRMED. Order Affirming Denial of Post-Conviction Relief, R .I, doc.9, Ex. E at 3. This is just the sort of ambiguous reference to state law that is remedied by application of the “plain statement” rule originate d in Michigan v. Long , 463 U.S. 1032, 1041-42 (1983), and later applied to habeas p roceedings in Harris . 489 U.S. at 261-63. There is no question that the stat e district court relied on federal law in rejecting the petition on the merits, and th e Oklahoma Court of Criminal Appeals’ order fairly appears to rest on federal law; “‘the adequacy and independence of any possible state law ground is no t clear from the face of the opinion.’” Coleman , 501 U.S. at 733 (quoting Long , 463 U.S. at 1040-41). In such a case, “‘we will accept as the most reasonabl e explanation that the state court decided the case the way it did because it be lieved that federal law required it to do so.’” Id. In light of the appeals court’s reiteration of th e district court’s findings on the merits, the two sentences in the ap peals court opinion stating general principles of res judicata and waiver, with out reference to particular issues or findings, are simply not a clear and expr ess statement here that the court-6-

affirmed the dismissal based on procedural default. Further, there is nothing in the Oklahoma Court of Criminal Appeals’ order indic ating that the reiteration of the district court’s findings on the merits and the court’s affirmance thereof is an alternative holding to dismissal based on procedura l default. See Harris , 463 U.S. at 264 n.10. Even if the Oklahoma Court of Criminal Appeals had affirmed the denial of relief based on procedural default, the district co urt’s finding that waiver was an adequate and independent state ground for procedura l default of the ineffective assistance of counsel claims was error. In Brechee n v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994), we recognized that “[t]he ge neral rule is the failure to raise a claim at trial or on direct appeal will preclude federal habeas corpus review of the merits of the claim absent a showing of either cause and prejudice or a fundamental miscarriage of justice.” We went on to hold that “[w]hen, however, the underlying claim is ineffective assistance of c ounsel, then our cases indicate the ‘general’ rule must give way because of countervailing concerns unique to ineffective assistance claims.” Id. This is so because, although the state rule regarding waiver of a claim not raised on direct ap peal is an independent state law basis, it is not an adequate basis. See id. at 1364. The choice between raising an ineffective assistance claim on direct appeal, withnew counsel but without the benefit of additional fact-finding, or forfeiting t he claim under state law,-7-

“deprives [a petitioner] of any meaningful review o f his ineffective assistance claim[s].” Id. For that reason, the ground is inadequate. Failu re to raise an ineffective assistance of counsel claim on direct r eview will not preclude federal habeas review because of procedural bar. See id. at 1363-64; Brewer , 51 F.3d at 1522. III The district court addressed petitioner’s claims of ineffective assistance of appellate counsel on the merits, and found them to be baseless. We agree. With regard to these claims, our review is de novo. See Brewer , 51 F.3d at 1523. We accept the district court’s findings of fact absentclear error. See id. Petitioner must show both that counsel’s performance was defic ient, and that the deficient performance prejudiced the defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). These same standards are applicable to claims of ineffective assistance of appellate counsel. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). The district court made detailed findings with regard to the following ineffective assistance of appellate counsel claims: failure to raise on appeal Detective McKenzie’s disqualification because of re lation to individual that petitioner claims actually committed the crime; fai lure to include witness statements and police reports in appellate record; and failure to raise issue on1 We note that the district court referred to claims of ineffective assistance of

appellate counsel with regard to several other issu es raised by petitioner. Our reading of both the petition before that court and the petition filed on appeal shows that petitioner raised ineffective assistance of appellate counsel claims only in the three issues addressed above. None of petit ioner’s other issues were couched in terms of appellate counsel’s ineffective ness. -8- appeal that former conviction should have been supp ressed and not used for sentence enhancement. 1 We affirm the district court’s determination thatnone of these three claims has merit for substantially the same reasons set forth in the magistrate judge’s findings and recommendations. IV With regard to all other issues, however, we must r emand to the district court. The district court’s interpretation of the Oklahoma Court of Criminal Appeals’ order as applying procedural bar was errorand, therefore, the district court’s application of procedural bar on that basis was also error. Thus, we remand for further consideration on all issues, exc ept the ineffective assistance of appellate counsel claims, which we affirm. The jud gment of the district court is AFFIRMED in part, REVERSED in part and REMANDED. The certificate of appealability is GRANTED.

Entered for the Court
Mary Beck Briscoe Circuit Judge