FILED

United States Court of Appeals

Tenth Circuit

August 13, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAURICE TUBBS, 

Petitioner - Appellant,

v.

TIM WILKINSON, Warden, Davis

Correctional Facility,

Respondent - Appellee.

No. 15-6017

(D.C. No. 5:14-CV-01282-F)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

Petitioner Maurice Tubbs, a state prisoner represented by counsel, seeks a

certificate of appealability to appeal the district court’s denial of his § 2254

habeas petition.

Following an Oklahoma jury trial, Petitioner was convicted of murder and

sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals

affirmed his conviction and sentence. Petitioner then filed an application for

post-conviction relief, in which he raised claims of ineffective assistance of trial

*

 This order is not binding precedent except under the doctrines of law of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.
and appellate counsel. The state district court denied the application for postconviction relief, and the OCCA affirmed, holding that Petitioner’s claims of

ineffective assistance of trial counsel were barred because they should have been

raised on direct appeal and that his ineffective assistance of appellate counsel

claim failed under Strickland v. Washington, 466 U.S. 668 (1984) (setting out the

two-part test for ineffective assistance of counsel claims).

Petitioner then filed the instant petition for federal habeas relief, in which

he raised the same claims of ineffective assistance of trial and appellate counsel. 

A magistrate judge reviewed Petitioner’s claims and concluded that his claims of

ineffective assistance of trial counsel were procedurally barred from federal

habeas review by the OCCA’s application of an independent and adequate state

procedural ground, namely the failure to raise the claims on direct appeal. The

magistrate judge further concluded that Petitioner’s allegations of ineffective

assistance of appellate counsel—which were based only on appellate counsel’s

failure to raise Petitioner’s claims of ineffective assistance of trial counsel in the

direct appeal—were insufficient to establish cause for the procedural default of

his underlying ineffective assistance of trial counsel claims. The magistrate judge

therefore recommended that the district court deny the habeas petition. Following

a de novo review of the matter, the district court adopted the magistrate judge’s

Report and Recommendation and accordingly denied Petitioner’s habeas petition.

Petitioner now seeks a certificate of appealability on the ground that state

-2-
procedural bars may not be applied to prevent consideration of federal

constitutional issues. Petitioner’s counsel raised the same argument in an appeal

which we resolved approximately one month before counsel filed his opening

brief in this case, in Pennington v. McCollum, 599 F. App’x 843 (10th Cir. 2015),

and we find this argument no more persuasive now. As we previously stated,

“[n]one of the authorities cited by Petitioner support his argument, which runs

counter to decades of well-established law.” Id. at 844.

Petitioner fails to raise any non-frivolous arguments for relief, and we

accordingly conclude that reasonable jurists would not debate the district court’s

resolution of this case. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We

therefore DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge

-3-