* This order and judgment is not binding precedent, e xcept under the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

### SEP 17 2002 

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

STEVEN MEEKER,

Petitioner - Appellant,

v. RON WARD, Warden,

Respondent - Appellee. No. 01-6394 (D.C. No. CIV-01-233-W) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before HENRY and HOLLOWAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner-appellant Steven Dale Meeker appeals the order of the district court denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. He also reapplies in this court for a certificate of appealability (COA). In order to merit the grant of COA, petitioner mus t make “a substantial showing of the denial of a constitutional right,” 2 8 U.S.C. § 2253(c)(2), which requires “a demonstration that . . . includes showi ng that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further,” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation omitted). Because petit ioner has failed to make this showing, we deny the application for COA and dismis s the appeal. Petitioner was convicted in Oklahoma state court of one count of committing a lewd or indecent act with a child unde r sixteen and one count of rape in the first degree by instrumentation. Petit ioner was sentenced to twelve years’ imprisonment. After petitioner’s convictionand sentence were affirmed on direct appeal, he brought two unsuccessful actions for state post-conviction relief. In his federal habeas petition, petitioner raises f ifteen claims, eight of which were adjudicated on the merits by the state c ourt, either on direct appeal or in his first post-conviction proceeding. Federal h abeas relief will be forthcoming-3-

based on those claims, therefore, only if petitione r can demonstrate that the decision of the Oklahoma court “was contrary to, or involved an unreasonable appli cation of, clearly established Federal law, as determined by the Supre me Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was bas ed on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). Thus, we may grant the writ if we find the state court arriv ed at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Courthas on a set of materially indistinguishable facts; or unreasonablyapplied the governing legal principle to the facts of the priso ner’s case.
Hain v. Gibson , 287 F.3d 1224, 1229 (10th Cir. 2002) (quotation o mitted). The federal magistrate judge, in a thorough and wel l-reasoned report and recommendation, recommended the petition be denied. With regard to the claims adjudicated by the state court, the magistrate judg e determined that the Oklahoma court’s rejection of petitioner’s claims in each in stance was not contrary to, or an unreasonable application of, clearly established Supreme Court jurisprudence, and that the appellate court’s decision was not based o n an unreasonable determination of the facts in light of the evidence presented at trial. As for the claims presented for the first time in p etitioner’s second state post-conviction proceeding, the magistrate judge fo und that these claims had been defaulted in state court on an adequate and indepen dent state procedural ground and that petitioner had failed to demonstrate cause and prejudice for this default, or that failure to address the claims in federal co urt would amount to1 The fundamental miscarriage of justice exception is rare and is “implicated

only in an extraordinary case, where a constitution al violation has probably resulted in the conviction of one who is actually innocent.” Phillips v. Ferguson , 182 F.3d 769, 774 (10th Cir. 1999) (quotations omitted). Petitioner did not specifically allege actual innocence in his § 2254 petition, but makes that claim for the first time on appeal. We thus will not address this argument. See Rojem v. Gibson , 245 F.3d 1130, 1141 (10th Cir. 2001). Even if itwere not barred, petitioner has failed to bring forth evidence of ac tual innocence such that “it is more likely than not that no reasonable juror wouldhave convicted him . . . .” Phillips , 182 F.3d at 774 (quotation omitted). Petitioner’ s personal assertion of his innocence, by itself, cannot satisfy the fundam ental miscarriage of justice exception. See Schlup v. Delo , 513 U.S. 298, 329 (1995) (“The meaning of actual innocence . . . does not merely require a showing t hat a reasonable doubt exists in the light of the new evidence, but rather than no r easonable juror would have found the defendant guilty.”).

2 Since the date of the magistrate judge’s report andrecommendation, this court has disavowed the use of the “dead-bang winne r” language in ineffective assistance of appellate counsel claims. See Neill v. Gibson , 278 F.3d 1044, 1057 n.5 (10th Cir. 2001), petition for cert. filed (U.S. May 6, 2002) (No. 01-10121) (disavowing language in Walker v. Gibson , 228 F.3d 1217, 1237 (10th Cir. 2000), cert. denied , 533 U.S. 933 (2001), and other cases which requir ed “a showing more onerous than a reasonable probability that the omitted claim would have resulted in a reversal on appeal”).

-4- a fundamental miscarriage of justice. 1 The district court adopted the report and recommendation and denied the petition for habeas c orpus. We have reviewed the report and recommendation adop ted by the district court and substantially agree with its analysis. 2Petitioner has, therefore, failed to show that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a differe nt manner or that the issues presented were adequate to deserve encouragement to proceed further.”-5-

Slack , 529 U.S. at 484 (quotation omitted). Petitioner has thus failed to make “a substantial showing of the denial of a constitut ional right” as required before COA may issue. See § 2253(c)(2). Petitioner’s motion to submit addendum to opening b rief to comply with 10th Cir. R. 28.2 is granted. Petitioner’s re maining outstanding motions are denied. The application for COA is DENIED, and this appeal is DISMISSED.

Entered for the Court

Robert H. Henry Circuit Judge