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Price v. Champion, 10th Cir. (2000)
Price v. Champion, 10th Cir. (2000)
JUN 23 2000
PATRICK FISHER
Clerk
v.
No. 00-5016
(D.C. No. 98-CV-755-B)
(Northern District of Oklahoma)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
the record at no cost for purposes of preparing for his appeal. The district court
denied his petition without an evidentiary hearing, concluding he had procedurally
defaulted his claims. This appeal followed.
II
We review de novo whether a defendants claims are procedurally barred.
See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993). If a state prisoner
has defaulted his federal claims in state court by virtue of an independent and
adequate state procedural rule, federal habeas review of his claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice. Coleman
v. Thompson, 501 U.S. 722, 750 (1991). A state court finding of procedural
default is independent if it is separate and distinct from federal law. Maes v.
Thomas, 46 F.3d 979, 985 (10th Cir. 1995). A finding of procedural default is an
adequate state ground if it has been applied evenhandedly in the vast majority of
cases. Id. at 986 (quotation and citation omitted).
The district court denied Prices petition, concluding he had procedurally
defaulted his claims twice:
first, when he failed to raise his claim that he had been denied a
direct appeal through no fault of his own, despite having knowledge
of the facts underlying the claim, in his first post-conviction
application and then failed to appeal the trial courts denial of that
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He has failed to allege any cause for his first procedural default. On appeal, he
now claims the law library supervisor refused to send his notices of appeal. He
does not specify whether he is referring to his direct appeal or his first application
for post-conviction relief, but even if he was alleging cause for his failure to
appeal his first application, we do not consider the claim because it is raised for
the first time on appeal. See Oyler v. Allenbrand, 23 F.3d 292, 299 n.8 (10th Cir.
1994).
Furthermore, Price argues for the first time on appeal that his state
procedural default should be excused to prevent a fundamental miscarriage of
justice. However, even if we considered this claim for the first time on appeal,
fundamental miscarriage of justice is an extremely narrow exception, implicated
only in an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent. Ballinger, 3 F.3d at
1375 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To prevail, Price
must identify evidence that affirmatively demonstrates his innocence. See Schlup
v. Delo, 513 U.S. 298, 327 (1995). Price has done nothing more than present
conclusory statements of his innocence.
III
We conclude that Price has failed to make a substantial showing of the
denial of a constitutional right. The request for a certificate of appealability is
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Carlos F. Lucero
Circuit Judge
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