FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 29, 2008
                    UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court



 JAMES EARL WARE,

              Petitioner - Appellant,                      No. 08-6098
       v.                                               (W.D. Oklahoma)
 DAVID PARKER, Warden,                           (D.C. No. 5:07-CV-01328-M)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      James Earl Ware was convicted of first-degree rape following a bench trial

in Oklahoma state court and sentenced to 20 years’ imprisonment. On direct

appeal the Oklahoma Court of Criminal Appeals (OCCA) rejected his challenge to

the sufficiency of the evidence and affirmed his conviction. Mr. Ware then

sought postconviction relief in state court, claiming ineffectiveness of his trial

and appellate counsel. After the state trial court denied relief, he failed to file a

timely appeal. He unsuccessfully requested the postconviction trial court to

recommend granting him leave to file his appeal out of time. The OCCA then

refused to permit an untimely appeal.

      Mr. Ware next filed an application under 28 U.S.C. § 2254 in the United

States District Court for the Western District of Oklahoma. He challenged the
sufficiency of the evidence to convict him and claimed that he had been denied

effective assistance of counsel at trial and on direct appeal. Adopting the report

and recommendation of the magistrate judge, the district court denied the

application. It rejected the sufficiency-of-the-evidence challenge because the

OCCA’s decision neither contravened nor unreasonably applied Jackson v.

Virginia, 

, 319 (1979); nor did it turn on an unreasonable

determination of facts in light of the evidence. As to Mr. Ware’s ineffective-

assistance claims, the district court held that they were procedurally defaulted

because he had failed to raise them on direct appeal and had failed to file a timely

appeal of the postconviction trial court’s decision. The district court further

determined that Mr. Ware had not shown that a fundamental miscarriage of justice

would result from denial of habeas relief.

      Mr. Ware then filed a document styled “notice of intent to appeal,” which

the district court construed as an application for a certificate of appealability

(COA). The court denied the application. Mr. Ware now seeks a COA from this

court. We deny a COA and dismiss this appeal.

DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find

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the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 

, 484 (2000). On the other hand, “[w]hen the

district court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” 

plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” 

the Antiterrorism and Effective Death Penalty Act (AEDPA)

establishes deferential standards of review for state-court factual findings and

legal conclusions. “AEDPA . . . mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing

evidence.’” Saiz v. Ortiz, 

, 1175 (10th Cir. 2004) (quoting

28 U.S.C. § 2254(e)(1)). And if the federal claim was adjudicated on the merits

in the state court, “we may only grant federal habeas relief if the habeas petitioner

can establish that the state court decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,’ or ‘was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court

proceeding.’” 

U.S.C. 2254(d)(1) and (2)). Our concern is only

whether the state court’s result, not its rationale, is clearly contrary to or

unreasonable under federal law. 

When claims are adjudicated on the

merits in state court, “ADEPA’s deferential treatment of state court decisions

must be incorporated into our consideration of a habeas petitioner’s request for

COA.” Dockins v. Hines, 

, 938 (10th Cir. 2004).

      No jurist of reason could find debatable the district court’s denial of

Mr. Ware’s sufficiency-of-the-evidence challenge. The court properly concluded

that the OCCA’s determination of the issue was neither contrary to nor an

unreasonable application of clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). The court properly rejected Mr. Ware’s contention that “physical”

evidence—such as DNA test results—was necessary to establish guilt.

      Likewise, no jurist of reason could find debatable the district court’s

determination that Mr. Ware’s untimely appeal in his state postconviction

proceeding presents a clear procedural bar to federal habeas review of the claims

raised in the postconviction proceeding. See Duvall v. Reynolds, 

,

797 (10th Cir. 1998)

      The sole argument that Mr. Ware makes in his submission to this court is

that the district court “should [have] recognized [his] habeas claims were not

developed properly” and that it should have allowed him to withdraw these claims

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for reformulation. Appl. for COA at 2. But there is no indication in the record

that Mr. Ware raised this matter in the district court, or that he sought leave to

amend his § 2254 application. In any event, the basis of his contention that his

habeas claims were not developed properly is that he was assisted by an

incompetent prison law clerk who has, Mr. Ware says, since been removed from

that duty because of misconduct. We construe this as an ineffective-assistance

claim. But Mr. Ware has no right to the assistance of counsel on habeas, and thus

cannot invoke ineffective assistance as a basis for relief at this stage. See

Pennsylvania v. Finley, 

, 555-556 (1987).

      We therefore DENY the application for a COA and DISMISS the appeal.

We GRANT Mr. Ware’s motion to proceed in forma pauperis on appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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