UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESSIE RAY LAWS,

Petitioner - Appellant,

v.

BRENT FATKIN; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees.	No. 02-6000

(D.C. No. 00-CV-1775-R)

(W. District of Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.

Pro se petitioner Jessie Ray Laws, an Oklahoma state prisoner, seeks a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) to challenge the district court's dismissal of his petition for a writ of habeas corpus as procedurally barred. We deny the application for a COA and dismiss.

Laws is imprisoned pursuant to various state drug convictions. These convictions were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals ("OCCA"). Laws filed an application for post-conviction collateral relief, which the state district court denied on June 13, 2000. The OCCA determined that his appeal from that denial, which was filed July 17, 2000, was untimely under Rule 5.2(C)(2) of the Rules of the Court of Criminal Appeals, which states:

A petition in error and supporting brief, WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be filed with the Clerk of this Court. If the post conviction appeal arises from a misdemeanor or regular felony conviction, the required documents must be filed within thirty (30) days from the date the final order of the District Court is filed with the Clerk of the District Court.

Okla. Stat. Ann. tit. 22, ch. 18, App. R. 5.2(C)(2). The OCCA therefore declined jurisdiction over the appeal.

In his federal application for a writ of habeas corpus, Laws contends that he received ineffective assistance of trial and appellate counsel in contravention of the Sixth Amendment.1 The district court held that these claims, which were raised in Laws's post-conviction application, were procedurally defaulted. As we have stated, federal courts on habeas review "do[] not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 749–50 (1991)).

In Johnson v. Champion, 288 F.3d 1215, 1227 n.3 (10th Cir. 2002), we held that the OCCA's declination of jurisdiction based on Rule 5.2(C)(2) constitutes an independent and adequate state procedural ground. For substantially the same reasons articulated by the district court, we conclude that Law fails to demonstrate either cause and prejudice or a fundamental miscarriage of justice to overcome his procedural default.

Accordingly, upon our examination of the record, we DENY the application for a COA and DISMISS this matter. We GRANT Laws's motion to proceed in forma pauperis.2

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge