UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

CHARLES DARDEN,

 Petitioner - Appellant,

v.

ROBERT PATTON, Director, Oklahoma 

Department of Corrections,

Respondent - Appellee.

No. 14-6235

(D.C. No. 5:13-CV-00392-C)

(W.D. Okla.) 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges. 

 Petitioner Charles Darden, an Oklahoma state prisoner, seeks a certificate of 

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 

petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to 

appeal denial of a § 2254 application). Exercising jurisdiction under 28 U.S.C. § 1291, 

we deny a COA and dismiss this matter. 

 

* This order is not binding precedent, except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive 

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 5, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I. BACKGROUND 

 Mr. Darden is serving a 15-year sentence for a state drug trafficking conviction. 

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction and 

sentence on direct appeal. Mr. Darden applied for post-conviction relief, raising 22 

issues. The trial court denied his application. The OCCA affirmed, concluding that 

waiver or res judicata barred 21 of the issues because Mr. Darden had already raised them 

on direct appeal or waived them by raising them for the first time on post-conviction 

review when they could have been raised on direct appeal. The OCCA then denied the 

one issue that was properly presented—Mr. Darden’s ineffective assistance of appellate 

counsel claim. It concluded Mr. Darden failed to show the outcome of his trial or appeal 

would have been different but for appellate counsel’s alleged ineffective assistance. 

 Mr. Darden next filed a § 2254 petition in federal district court alleging due 

process and equal protection claims based on (1) lack of representation in his postconviction proceeding before the trial court, and (2) lack of adequate and independent 

state grounds for the state procedural default of his 21 issues because he had ineffective 

assistance of appellate counsel on direct appeal. 

 A magistrate judge issued a report and recommendation (“R&R”) recommending 

denial of relief. The R&R concluded Mr. Darden’s claims failed because (1) he was not 

entitled to counsel in post-conviction proceedings, (2) the OCCA’s determination on his 

ineffective assistance of counsel claim was not contrary to or an unreasonable application 

of Strickland v. Washington, 466 U.S. 668 (1984), and (3) his remaining claims were 

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procedurally barred. After considering Mr. Darden’s objections to the R&R, the district 

court adopted it and denied Mr. Darden’s request for habeas relief. 

II. DISCUSSION 

Mr. Darden may not appeal the district court’s denial of his § 2254 petition 

without a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a 

COA, he must make a “substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). When a state court has decided the petitioner’s claims on the merits, 

we “look to the District Court’s application of AEDPA to petitioner’s constitutional 

claims and ask whether that resolution was debatable among jurists of reason.” MillerEl, 537 U.S. at 336. When the district court dismisses a petition on procedural grounds, 

we will issue a COA only if the petitioner shows both (1) “that jurists of reason would 

find it debatable whether the petition states a valid claim of the denial of a constitutional 

right,” and (2) “that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

On appeal, Mr. Darden raises only one issue—that the district court erred in 

concluding his 21 claims were procedurally barred. Mr. Darden argues that the state 

courts’ application of procedural default without addressing his federal constitutional 

claims is itself a violation of substantive due process. He cites no supporting authority 

and ignores the means to overcome state procedural bar in a § 2254 habeas proceeding. 

In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that 

“federal habeas review . . . is barred” in any case “in which a state prisoner has defaulted 

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his federal claims in state court pursuant to an independent and adequate state procedural 

rule[,] . . . unless the prisoner can demonstrate cause for the default and actual prejudice 

as a result of the alleged violation of federal law, or demonstrate that failure to consider 

the claims will result in a fundamental miscarriage of justice.” Id. at 750. In other 

words, “[i]f a particular claim was defaulted in state court on an independent and 

adequate state procedural ground, we recognize the state courts’ procedural bar ruling 

and do not address the claim on the merits unless cause and prejudice or a fundamental 

miscarriage of justice is shown.” United States v. Thacker, 678 F.3d 820, 835 (10th Cir. 

2012) (quotations omitted). 

“To be independent, the procedural ground must be based solely on state law.” Id. 

“To be adequate, the procedural ground must be strictly or regularly followed and applied 

evenhandedly to all similar claims.” Id. (quotations omitted). The fundamental 

miscarriage of justice exception to the procedural default rule “is a markedly narrow one, 

implicated only in extraordinary cases where a constitutional violation has probably 

resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 

816, 820 (10th Cir. 2007) (quotations omitted). A claim of actual innocence must be 

based on new evidence suggesting “factual innocence, not mere legal insufficiency.” 

Bousley v. United States, 523 U.S. 614, 623 (1998); see also Calderon v. Thompson, 523 

U.S. 538, 559 (1998) (“The miscarriage of justice exception is concerned with actual as 

compared to legal innocence. . . . To be credible, a claim of actual innocence must be 

based on reliable evidence not presented at trial.” (quotations omitted)). 

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Mr. Darden’s argument that the Oklahoma procedural default rules barring his 

claims in state court are not independent because they prevent review of his federal 

claims, Aplt. Br. at 5-10, does not show they are based on anything other than solely state 

law. He does not attempt to address whether the state rules are adequate, nor has he 

attempted to show cause and prejudice or miscarriage of justice. In short, he has not 

shown that any reasonable jurist would debate the district court’s procedural ruling. 

In addition, and independently fatal to a COA, Mr. Darden does not argue in this 

appeal that his § 2254 petition demonstrates he was denied a constitutional right in the 

underlying state prosecution. 

Mr. Darden is therefore not entitled to a COA because (1) he does not show 

reasonable jurists could debate the district court’s procedural ruling and (2) does not even 

attempt to show that reasonable jurists “would find it debatable whether [his] petition 

states a valid claim for the denial of a constitutional right.” Slack, 529 U.S. at 484. 

III. CONCLUSION 

 Based on the foregoing, we deny Mr. Darden a COA and dismiss this matter. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge 

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