*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### DEC 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ TERRY JOE BRAGGS, Petitioner-Appellant,

v. THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA; GARY CARDINALE; JAMES SAFFLE, Respondents-Appellees. No. 98-6156 (W.D. Okla.) (D.Ct. No. CIV-97-1085-L)

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is-2-

therefore ordered submitted without oral argument.

Petitioner Terry Joe Braggs appeals the district co urt’s denial of his petition for a writ of habeas corpus, filed pursuant to 28 U .S.C. § 2254, and requests a certificate of appealability. Mr. Braggs is curren tly serving a twenty year sentence in the Mansfield Law Enforcement Center, f ollowing his conviction for robbery with a firearm. Mr. Braggs filed a direct appeal of his conviction with the Oklahoma Court of Criminal Appeals, asserting a s his sole claim the evidence was insufficient to prove his guilt. The Oklahoma Court of Criminal Appeals affirmed the conviction. Mr. Braggs then filed a p etition for federal habeas relief in which he again asserted the evidence was insuffi cient to support his conviction and added claims for ineffective assistance of coun sel and denial of due process as a result of an impermissibly tainted in-court id entification. Because the ineffective assistance of counsel and due process c laims had not been raised in the Oklahoma courts, the magistrate judge recommend ed the petition be dismissed as a “mixed petition,” containing both exhausted an d unexhausted claims. The district court adopted the magistrate judge’s recom mendation, dismissed the petition without prejudice, and denied a certificat e of appealability. We agree with the district court’s reasoning and therefore d eny Mr. Braggs’ motion for a1 A direct appeal effectively exhausts state remedies under Oklahoma law because

“[i]ssues which were raised and decided on direct appeal are barred from further consideration [at the state level] by res judicata.” Paxton v. State , 910 P.2d 1059, 1061 (Okla. Crim. App. 1996).
-3- certificate of appealability and dismiss his appeal

.
A state prisoner’s federal habeas petition should b e dismissed if the prisoner has not exhausted available state remedies

. Coleman v. Thompson , 501 U.S. 722, 731 (1991). A district court must also d ismiss “mixed” petitions containing both exhausted and unexhausted claims. Rose v. Lundy , 455 U.S. 509, 510 (1982). A claim is exhausted if a state appell ate court has had the opportunity to rule on the claim, or if the petitio ner has no available state avenue of redress. Miranda v. Cooper , 967 F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924 (1992). The latter circumstance occurs wh ere petitioner’s claims would be procedurally barred under applicable state law. Coleman , 501 U.S. at 732; Demarest v. Price , 130 F.3d 922, 939 (10th Cir. 1997).
In this case, Mr. Braggs exhausted his sufficiency of the evidence claim by raising it on direct appeal. 1 Mr. Braggs failed, however, to present his ineffe ctive assistance of counsel or due process claims before the Oklahoma Court of Criminal Appeals. Under Oklahoma law, if a prisone r bypasses an issue on direct-4-

appeal, he or she may not assert that issue in appl ication for state post-conviction relief. Jones v. State , 704 P.2d 1138, 1140 (Okla. Crim. App. 1985). Thu s, Mr. Braggs might argue his remaining claims are procedu rally barred, and therefore exhausted, since he bypassed direct appeal and coll ateral review is unavailable.
However, Oklahoma courts have recognized certain ex ceptions to the procedural bar rule. Specifically, a defendant may raise issues in an application for post-conviction relief not asserted on direct appeal if “sufficient reason” prevented assertion of the error or if defendant bypassed direct appeal because of a procedural error of counsel. Okla. Stat. tit. 22, § 1086 (1986); Jones , 704 P.2d at 1140. Because there is a possibility that the s tate court may allow review of Mr. Braggs’ claims under one of these exceptions, t here remains an available state avenue of redress, and Mr. Braggs must exhaust thatremedy before proceeding with his federal habeas petition. See Snowden v. Singletary , 135 F.3d 732, 737 (11th Cir.) (noting a procedural bar does not amoun t to exhaustion if “there is a reasonable possibility that an exception to the pro cedural bar may still be available to the petitioner”), cert. denied, 119 S. Ct. 405 (1998); Lambert v. Blackwell , 134 F.3d 506, 519 (3d Cir. 1998) (holding that fe deral court should dismiss a petition if it is uncertain how a state c ourt would resolve the procedural default issue), petition for cert. filed (S. Ct. Apr. 23, 1998) (No. 97-8812).-5-

Mr. Braggs has failed to adequately exhaust availab le state remedies, a prerequisite to bringing this action. Rose , 455 U.S. at 510. Since Mr. Braggs may obtain relief in state court, he has not yet ma de a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3; Hogan v. Zavaras , 93 F.3d 711, 712 (10th Cir. 1996) (denying certificate of appealability where petitioner failed to exhaust state remedies). Accordingly, we deny Petitioner’s application for a certificate of appealability and DISMISS this appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge