*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 18 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROY LEE HOWARD, 

Petitioner - Appellant, No. 97-2284

v. (D.C. No. CIV 97-354-BB)

JOE WILLIAMS, Warden, Central New

Mexico Correctional Facility, and

ATTORNEY GENERAL FOR THE

STATE OF NEW MEXICO,

(D. New Mex.)

Respondents - Appellees.

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner Roy Howard appeals the district court’s dismissal of his petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court dismissed
2

Petitioner’s habeas claim because federal habeas review is barred by Petitioner’s

procedural default in state court. After Mr. Howard filed his notice of appeal, the district

court issued an order denying him a certificate of appealability. 

Petitioner alleges for the first time on appeal that the failure to grant him federal

habeas review would result in a fundamental miscarriage of justice sufficient to avoid the

procedural bar to federal habeas review of his claims. See Shafer v. Stratton, 906 F.2d

506, 509 (10th Cir. 1990). To show a fundamental miscarriage of justice in the context of

procedural default, Petitioner must show that his case presents “an extraordinary case,

where a constitutional violation has probably resulted in the conviction of one who is

actually innocent” of the crime. Murray v. Carrier, 477 U.S. 478, 496 (1986); see

McCleskey v. Zant, 499 U.S. 467, 494 (1991). Petitioner’s allegation of innocence in the

brief he filed with this court on October 14, 1997, contradicts his statements admitting

guilt in his Objection to Magistrates [sic] Proposed Findings filed July 28, 1997, his

Application for a Writ of Habeas Corpus filed in the United States District Court for the

District of New Mexico on March 17, 1997, and his Petition for Writ of Habeas Corpus

filed in the New Mexico state court on December 13, 1996. Compare Petitioner’s Brief at

10 (“I was not even near the house when the shot’s [sic] were being fired.”) with R., Vol.

I, Doc. 1 (Application for a Writ of Habeas Corpus) (“Plaintiff’s [sic] was protecting his

brother and feels that this charge was justifiable.”); Doc. 12 (Exhibit E to Respondent’s

Answer) (“this was justifiable homicide in which he was protecting his life and the life of
3

his brother”); Doc. 16 (Plaintiff’s Objection to Magistrates [sic] Proposed Findings)

(“Plaintiff protecting himself against be shot [sic] by a person that had already shot his

brother”). Petitioner’s unsupported allegation of innocence is insufficient to undermine

our confidence in his plea. See Schlup v. Delo, 513 U.S. 298, 316, 327-28 (1995). The

contradiction in Petitioner’s statements coupled with the fact that Petitioner has alleged

innocence for the first and only time in this appeal lead us to conclude that Petitioner has

failed to meet the fundamental miscarriage of justice standard. Federal habeas review of

his claims is therefore barred.

This court will issue a certificate of appealability when a petitioner makes a

substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 

After careful examination of Petitioner’s application and brief, the entire record, the

magistrate judge’s report and recommendation, and the district court’s order of dismissal

filed August 6, 1997, we conclude that Petitioner has failed to make the requisite showing

for us to issue a certificate of appealability. Consequently, Petitioner’s request for a

certificate of appealability is DENIED, and the appeal is DISMISSED. 

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge