F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   September 29, 2005
                                  TENTH CIRCUIT
                                                                       Clerk of Court

 ANTHONY DEAN CONLEY,

          Petitioner-Appellant,
                                                         No. 05-3068
 v.
                                                 (D.C. No. 04-CV-3144-KHV)
                                                           (Kansas)
 DAVID MCKUNE; PHILL KLINE,
 Attorney General of Kansas,

          Respondents-Appellees.



                                     ORDER *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Anthony D. Conley applies pro se 1 for a certificate of appealability (COA)

of the district court’s denial of his petition for writ of habeas corpus under 28

U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 2253(c)(1), we deny a

COA and dismiss the appeal.

      On August 7, 1998, a jury found Mr. Conley guilty of first degree murder in


      After examining appellant’s brief and the appellate record, this panel has
      *

determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
      1
       We liberally construe Mr. Conley’s pro se application. See Hall v. Scott,

, 1266 (10th Cir. 2002).
violation of K.S.A. § 21-3401(a). He was sentenced to life in prison with no

possibility of parole for forty years. The Kansas Supreme Court affirmed and the

United States Supreme Court denied his petition for a writ of certiorari. Mr.

Conley then filed a motion for state post-conviction relief, which was

subsequently denied by the trial court and the Kansas Court of Appeals. He did

not seek review of that decision in the Kansas Supreme Court. Instead, Mr.

Conley petitioned the federal district court for a writ of habeas corpus, which it

denied initially and after Mr. Conley’s motion to reconsider. 2 In support of his

application for a COA, Mr. Conley asserts the criminal complaint against him was

jurisdictionally defective because it lacked a penalty provision. As a result, he

argues, the maximum authorized sentence was zero and the sentence he received

violated Apprendi v. New Jersey, 

(2000). 3

      Issuance of a COA is jurisdictional, Miller-El v. Cockrell, 

(2003), and can issue only “if the applicant has made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies


      2
        The district court did not act on the issue of a certificate of appealability,
and it is therefore deemed denied. See United States v. Kennedy, 

,
1193 n.3 (10th Cir. 2000).
      3
        In his petition to the district court, Mr. Conley also claimed the affidavit
which supported the arrest warrant contained false elements, counsel was
ineffective, and the trial court denied his right to confront witnesses. He has not
raised these issues in his COA application, and we consider them abandoned. See
Tran. v. Trs. of State Colls. in Colo., 

, 1266 (10th Cir. 2004).

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this standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” 

. When a district court has dismissed a

habeas petition on procedural grounds, a prisoner must also show that “jurists of

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

procedural ruling.” Slack v. McDaniel, 

, 484 (2000). “The COA

determination under § 2253(c) requires an overview of the claims in the habeas

petition and a general assessment of their merits.” 

.

“This threshold inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims. In fact, the statute forbids it.” 

Conley is not required to prove the merits of his case, he must demonstrate

“something more than the absence of frivolity or the existence of mere good

faith” on his part. 

(internal quotations and citation omitted).

      The district court dismissed Mr. Conley’s claim regarding an alleged

defective complaint because it determined the claim was procedurally defaulted.

A state prisoner may not petition for federal habeas corpus relief “unless it

appears that . . . the applicant has exhausted the remedies available in the courts

of the State.” 28 U.S.C. § 2254(b)(1)(A). Exhaustion of the federal issue is

satisfied if it has been properly presented to the highest state court, either by


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direct review of the conviction or in a post-conviction attack. Dever v. Kan. State

Penitentiary, 

, 1534 (10th Cir. 1994).

      Mr. Conley contends the issue was properly exhausted because on direct

appeal he argued the Kansas sentencing scheme violated Apprendi, and that

argument was presented to the Kansas Supreme Court. But in his direct appeal,

he contended Apprendi was violated because he was denied a jury determination

of the facts necessary to sentence him to forty years without parole. In his federal

habeas petition, however, Mr. Conley claims that the criminal complaint against

him contained jurisdictional defects resulting in a violation of Apprendi. He thus

essentially made two distinct Apprendi arguments. He raised the jurisdictional

defect issue in his post-conviction proceedings, but then failed to properly present

that claim to the highest court of Kansas. Because the time for appeal has passed,

the district court concluded the claim was procedurally defaulted. We agree that

Mr. Conley failed to properly exhaust the issue of the defective complaint and it

is now procedurally barred.

      The procedural default doctrine precludes federal habeas review of Mr.

Conley’s unexhausted claim unless he shows (1) both cause and prejudice or (2) a

fundamental miscarriage of justice. Coleman v. Thompson, 

, 749

(1991). Mr. Conley contends his state appointed post-conviction counsel failed to

advise him of the statute of limitations for his post-conviction appeal to the


                                         -4-
Kansas Supreme Court, which resulted in his missing the deadline and not

presenting all his issues to the highest court in the state. Accordingly, he

contends his attorney’s incompetence is the cause of the procedural default

resulting in prejudice. But there is no constitutional right to counsel in collateral

proceedings, Pennsylvania v. Finley, 

, 555 (1987), and therefore a

failure of post-conviction counsel resulting in procedural default “cannot

constitute cause to excuse default in federal habeas.” 

.

Mr. Conley does not assert a fundamental miscarriage of justice and would not

succeed had he done so. See McClesky v. Zant, 

, 494 (1991) (cases

involving a fundamental miscarriage of justice “are extraordinary instances when

a constitutional violation probably has caused the conviction of one innocent of

the crime”). Consequently, we agree with the district court that he has

procedurally defaulted his defective complaint claim for purposes of federal

habeas review.

      We have carefully reviewed the record of these proceedings and the order

of the district court. We adopt the district court’s reasoning and conclude that

reasonable jurists would not debate its procedural ruling. We DENY the request

for a certificate of appealability, and DISMISS the appeal.

                                        SUBMITTED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge

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