* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 

### OCT 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDDIE THOMAS, SR., Petitioner-Appellant,

v. STEVE HARGETT, Warden, Respondent-Appellee. No. 98-6248 (D.C. No. CIV-97-1498-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL , and MURPHY , Circuit Judges.
On July 23, 1996, Mr. Thomas entered a plea of guil ty in state court to two counts of first degree rape and was sentenced to co ncurrent 35-year terms of imprisonment. The defendant failed to file a notice of appeal within the ten days allotted by Oklahoma law and consequently, the judg ment of his conviction1 Rule 4.2(A) requires: In all cases, to appeal from any conviction on a pl ea of guilty or nolo contendere, the defendant must have filed in the tr ial court clerk’s office an application to withdraw the plea within t en (10) days from the date of the pronouncement of the Judgment and S entence, setting forth in detail the grounds for the withdrawal of t he plea and requesting an evidentiary hearing in the trial court.

2 28 U.S.C. § 2254(e)(1) states: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgm ent of a State (continued...) - 2 - became final. See Okla. Stat. tit. 22, Ch. 18, App., Rule 4.2(A). 1 In his postconviction application, Thomas through court-appointed counsel challenged his conviction on the ground that he was denied effecti ve assistance of counsel during the critical ten days following his guilty p lea and sentencing. After holding an evidentiary hearing on the matter, the state tri al court concluded that Thomas “failed to show that he was denied an appeal throug h no fault of his own or that other circumstances beyond his control should relie ve him of accountability for his potential appeal.” The Oklahoma Court of Crimin al Appeals affirmed. Pursuant to 28 U.S.C. § 2254, Thomas filed in the d istrict court a federal habeas challenge to his conviction on the same inef fective assistance of counsel ground. The district court found no evidence in th e record rebutting the presumption of correctness attached to the state co urt’s factual determinations of Thomas’ denial of appeal, see 28 U.S.C. § 2254(e)(1), 2 and concluded that2 (...continued) court, a determination of a factual issue made by aState court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear a nd convincing evidence.

3 “An appeal may not be taken in forma pauperis if t he trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).

4 Thomas’ request to proceed without prepayment of c osts and fees is granted. However, this court need not decide whethe r Thomas’ appeal was taken in good faith in light of our determination that a certificate of appealability should be denied. - 3 - Thomas’ claim is procedurally barred. In a subseque nt order, the district court denied Thomas’ pro se request for a certificate of appealability and, pursuant to 28 U.S.C. § 1915(a)(3), 3 denied Thomas’ motion to proceed on appeal without paying this court’s filing fee because the appeal w as not taken in good faith. Thomas now asks this court to grant him leave to pr oceed in forma pauperis and to grant a certificate of appealability. Upon careful review of the record, we find that the district court properly denied Thomas’ application for a certificate of app ealability. 4 Thomas asserts that newly discovered evidence -- six affidavits signed after his state evidentiary hearing -- rebuts any presumption of correctness attached to the state court’s findings. However the contents of the affidavits (m ost of which were reviewed by the district court) shed no light on the issue befo re the state court: whether Thomas was denied an appeal through no fault of his own. As a result, Thomas- 4 -

offers no “clear and convincing evidence” rebutting the presumption of correctness afforded to the state court factual fin dings regarding his denial of appeal. We also agree that the affidavits contain no colorable showing of factual innocence. Therefore, we DENY Thomas’ petition for a certificate of appealability, and DISMISS his appeal. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge